1709842 (Refugee)

1709842 (Refugee) [2020] AATA 5127 (30 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709842
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Alison Mercer
DATE:30 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 October 2020 at 6.19pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – member of family unit in mother’s protection visa application – mother left Australia and has not returned – unaware of mother’s claims and no claims in own right – father and sister remained in home country – country information about economy and employment prospects – any financial hardship not a threat to subsistence – decision under review affirmed
LEGISLATION

Migration Act 1965 (Cth), ss 5H(1), 5J(1), (5), 36, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 886.411
CASE
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 dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Indonesia, applied for the visa on 28 September 2015. The delegate refused to grant the visa on the basis that Australia did not owe the applicant protection obligations. Although the date of the decision is 29 July 2016, the Department’s records indicate that the applicant was not notified of the decision until 4 May 2017.
The Tribunal received a review application from the applicant on 7 May 2017, which was accompanied by a copy of the delegate’s decision.
On 5 February 2020, the Tribunal wrote to the applicant to invite him to attend a hearing on 3 April 2020. On 23 March 2020, the Tribunal wrote again to the applicant to advise that the hearing had been postponed for reasons beyond the control of the Tribunal, and that the Tribunal would advise him of a new hearing date in due course.
On 27 July 2020, the Tribunal wrote to the applicant to invite him to attend a hearing by teleconference on 25 August 2020. The Tribunal advised that due to the COVID19 pandemic restrictions, it was unable to conduct in person hearings.
On 19 August 2020, the applicant responded to indicate that he would attend the hearing and would require an Indonesian interpreter.
The applicant attended the hearing on 25 August 2020 by teleconference, at which the Tribunal and he were assisted by the services of an interpreter in the English and Bahasa Indonesian languages.
The Tribunal exercised its discretion to hold the hearing by telephone as the hearing was held during the COVID-19 pandemic. The Tribunal 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. The Tribunal 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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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 LAW, CLAIMS AND EVIDENCE
Protection visa application
The applicant made a protection visa application on 28 September 2015 together with his mother, [Ms A], who was the primary visa applicant. In the application, he indicated that he arrived as the holder of a visitor visa, travelling on a valid Indonesian passport, on[in] September 2015 with his mother, [Ms A]. He further indicated that he was born in Indonesia in November 1992.
The delegate found that the applicant’s mother, [Ms A], departed Australia [in] May 2016 without a visa to return to Australia, and that she remained outside Australia at the time of the delegate’s consideration. The delegate therefore found that the applicant’s mother did not meet cl.886.411, which states that a protection visa cannot be granted unless the applicant is in the migration zone (Australia), and was not entitled to a protection visa.
The delegate then went on to find that as the applicant was a member of the family unit of his mother, he therefore was also not entitled to a protection visa. It appears that the delegate was satisfied that the applicant had not made claims in his own right but was relying on his mother’s claims.
Tribunal review application
As noted above, the applicant lodged a review application with the Tribunal on 7 May 2017, which was accompanied by a copy of the delegate’s decision.
Hearing
The applicant participated in the hearing on 25 August 2020 by telephone. He and the Tribunal were assisted by the services of an interpreter in the English and Indonesian – Bahasa languages.
The applicant said that his mother made the protection visa application, and told him that he would be included as her family unit member. She did not tell him what her grounds were for making the protection visa application, other than wishing to remain in Australia. The applicant confirmed that he did not make his own claims but relied on whatever his mother said. He did not know what she claims she made in the protection visa application.
The applicant indicated that he understood that his protection visa application was rejected because the delegate found that, as his mother had returned to Indonesia, she could not be granted a protection visa, and therefore the applicant (as a member of her family unit) could also not meet the criteria to be the member of the family unit of someone who held a protection visa. The applicant said that his mother returned to Indonesia in 2016 because the applicant’s father was ill. He died about a year later. The applicant remained in Australia. The applicant said that his mother remained in Indonesia, looking after the applicant’s younger sister, who was in the first year of middle school, and who had previously been looked after by the applicant’s father when both the applicant and his mother were in Australia.
The applicant confirmed that apart from his mother and sister, who are in central Java, he also had an older brother in Indonesia, who lived elsewhere and was married with his own family to support. The applicant clarified that he was not married, was of Javanese ethnicity and a Muslim. He told the Tribunal that he completed high school and had wanted to undertake further study, but could not do so due to lack of funds. Therefore, he started work after high school. He helped out in his parents’ [business], which supplied [products]. Subsequently, he found employment with another business as [an occupation]. He was doing this work up until the time that he left to come to Australia. He lived with his parents up until this time.
In response to the Tribunal’s query, the applicant said that he and his mother applied for visitor visas for Australia in 2015. He said that he did not know the reason or initiate the applications; he was just following his mother’s directions. She just asked him to come with her to Australia, but she did not say for how long. He said that he thought that they were just going on holiday, but after 3 months, his mother lodged the protection visa application with both of them included.
The applicant told the Tribunal that he travelled ahead of his mother and stayed with a friend of hers in [Suburb] when he arrived This friend assisted him to find work on a [workplace] in [Town]. The applicant said that he wanted to work. He reiterated that his mother did not tell him why they were going to Australia. When his mother arrived after a few months, she stayed with their friend in [Suburb] and also found work. He returned to [Suburb] at this time and they both lived and worked there until the applicant’s mother returned to Indonesia in May 2016. The applicant remained in [Suburb] and continued to do [workplace] work.
In response to the Tribunal’s query, the applicant said that he did not know whether his visitor visa had work rights attached. He reiterated that his mother was the moving force behind their protection visa application, and he understood she made it so that they could remain in Australia for longer than 3 months and get status in Australia. The Tribunal observed that her husband and daughter remained in Indonesia. The applicant said that he understood that his mother was going to get his father to come to join them in Australia, and that his sister would live with her grandparents in Indonesia until she finished school. However, his father was not able to come to Australia as he fell ill. The applicant said that he was not sure of exactly what illness his father had but understood that it was a serious heart condition. They found out about his illness about 5 months after the applicant arrived in Australia; the applicant’s father rang the applicant’s mother and told her as they were in regular contact. The applicant’s mother returned and ensured that the applicant’s father got proper treatment in hospital, but ultimately he died.
In response to the Tribunal’s query, the applicant said that although his mother returned to Indonesia, he thought that he should stay in Australia to keep working to help out with the private hospital treatment costs for his father. The applicant said that he did not know if his mother had any fear about returning to Indonesia, apart from her concern about her husband’s illness. He said that she was living with his sister in the family home since his father’s death, and he assisted them financially. The applicant said that he did not know if his mother received any kind of government welfare or pension but he thought not. He sent approximately AUD $[Amount] per month to them. He was still working although the COVID19 pandemic had reduced the amount of work available and he was now working 2 to 3 days per week, instead of full time. He rented a room in [Suburb].
When asked what he thought would happen if he had to return to Indonesia now, the applicant said that if he were granted a protection visa, he would like to stay in Australia so that he could continue to help his mother and sister financially.
He then said that he would be worried that his sister would have to drop out of school and his mother wouldn’t be able to financially support her to continue because his mother was not working. The applicant said that the business his parents ran closed after his father died and he did not think his father left much in the way of assets to the applicant’s mother, although he did not know for sure. The applicant said that he did not think that anyone else in his family could financially assist his mother and sister, as his grandparents are elderly and his older brother had to support his own family. The applicant said that he did not think his mother could work any more because of her condition. When asked what condition his mother had, the applicant said that she had gone downhill since his father died, and it had affected her health and weakened her.
In response to the Tribunal, the applicant said that he had no other concerns apart from these about returning to Indonesia. His sister had 5 years of secondary school to go and he wanted to earn enough to make sure she could complete this. He said that even if he returned and was able to find work in Indonesia, he was not sure he would get a good enough job to be able to support his sister’s education costs. He said that it was difficult to get decent paying work in Indonesia, and this had been worsened by the pandemic.
The Tribunal queried whether the applicant thought that this might be different if he went back to a larger city, such as Jakarta, which might have more plentiful work opportunities. The applicant said that from what he knew, a lot of people were out of work there too, and noted that he did not have the skills or educational qualifications to get a good job. He said that to the best of his knowledge, he would not be entitled to any government assistance, such as unemployment benefits, and his parents had not had social or life insurance.
The Tribunal discussed with the applicant its preliminary view that financial hardship in and of itself would not generally meet either the refugee or complementary protection definition. The applicant reiterated that he wished to stay on in Australia.
Country Information
The Tribunal had regard to the following sections from the most recent Australian Department of Foreign Affairs and Trade (DFAT) Country Report on Indonesia, issued on 25 January 2019:
…
ECONOMIC OVERVIEW
The Indonesian economy is the largest in Southeast Asia and sixteenth largest globally in nominal GDP terms. Indonesia has experienced sustained economic growth for a number of years. Year on year real GDP growth averaged 5.12 per cent between 2013 and 2018. Services, including transport, communications, tourism, financial and business services, increasingly drive Indonesia’s economic growth, accounting for 46.7 per cent of Indonesia’s GDP in 2016. Industry and resources sectors, including petroleum and natural gas, textiles, automotive, electrical appliances, apparel and footwear, mining, cement, medical instruments and appliances, handicrafts, and chemical fertilisers, accounted for 39.6 per cent of GDP. Agriculture, including rubber, palm oil, poultry, beef, coffee, fish products, spices, and forest products, accounted for 13.7 per cent.
The Widodo government’s main economic policy priorities are inequality, poverty reduction and regional development. Since President Widodo’s election in 2014, the government has launched high-profile initiatives on infrastructure development and social assistance programs related to education and health care. Reforms of long-standing energy subsidies have enabled re-prioritisation of public spending in favour of increased investment in programs that directly affect the poor. Indonesia’s trade policy continues to focus on self-sufficiency and reducing dependence on foreign imports, which has led to higher domestic prices for basic commodities and contributed to limiting the impact of other economic reforms. Indonesia continues to face considerable economic challenges. Economic growth is below levels required to meet Indonesia’s ambitious poverty reduction goals or to absorb new entrants to the labour market each year.
Poverty is falling. The poverty rate fell to 9.8 per cent in July 2018, the first time it has been below 10 per cent. The national poverty line represents expenditure of less than the equivalent of USD 2.20 (PPP) per person per day. A further 24 per cent of the population is considered to be vulnerable to falling into poverty, which is measured as a one-in-ten chance of falling below the poverty line in the next year.
Inequality divides Indonesia geographically: the densely populated western islands of Java and Sumatra are hubs for employment and investment. In comparison, eastern Indonesia has higher rates of poverty, in large part due to lack of connectivity with larger growth centres.
Employment
The official unemployment rate in 2017 was 6.34 per cent in urban areas and 3.72 per cent in rural areas. A large number of people in formal employment are underemployed or underutilised; official rates count the employed as those who worked at least one hour in the week of the survey. The informal sector forms a large part of Indonesian industry and employs many people. The term ‘informal sector’ describes work not covered by formal employment arrangements and protections, and includes: entities that are not registered or do not pay tax; street vendors; and people, especially women, performing home-based work. The size of the sector is difficult to measure. Estimates range between 29 per cent to up to 90 per cent of the economy in some areas of Indonesia.
Employers are required to contribute towards insurance (BPJS Ketenagakerjaan) but not all employers comply. People working in the informal sector do not receive such benefits. Compulsory contribution funds for old age and disability insurance for all workers were introduced in 2015; previously these were only available to government workers.
The World Bank estimates that 9 million Indonesians work overseas, mainly in the Middle East and Southeast Asia, especially Malaysia. Most female migrant workers obtain employment as domestic workers, while male workers work in a variety of sectors including agriculture, construction, and maritime-related industries. Approximately half of all migrant workers are undocumented and 61 per cent of female domestic workers in Malaysia are undocumented. The remittances sent back by migrant workers make an important contribution to Indonesia’s economy: in 2016, remittances from migrant workers totalled USD 8.9 billion.
…

Assessment
The applicant’s claims at the hearing were that he would face economic problems if he now returned to Indonesia as he believed that he could earn more money in Australia if granted permission to work here, and was concerned that he would not be able to find work in Indonesia if he returned, sufficient to support himself and his younger sister, and to contribute to the latter’s education.
The Tribunal recognises that the above information, which was discussed with the applicant at the hearing, was produced before the current COVID19 pandemic, so some of its assumptions about the future performance of the Indonesian economy may be inaccurate. However, the economic uncertainty associated with the COVID19 pandemic is not confined to Indonesia, and also affects Australia, where the applicant currently resides.
The Tribunal acknowledges that the applicant is concerned about his employment prospects if he now returned to Indonesia, and it accepts that he is therefore concerned about supporting himself, and contributing to the support of his widowed mother and younger sister, who are not working.
The Tribunal nevertheless notes that the applicant has some work experience in Indonesia in his parents’ business and as [an occupation], and that he has previously worked on [workplaces] in Australia. It is therefore not satisfied that he would be unable to find any work if he returned to Indonesia now or in the reasonably foreseeable future, although it accepts that it would most likely involve lower pay than he might be able to obtain in Australia. The Tribunal further finds that the applicant would be able to live with his mother and sister if he returned to Indonesia (as he did before coming to Australia). While the Tribunal considers it understandable that the applicant wishes to contribute to his mother and sister’s support, it notes that the applicant has an older married brother in Indonesia, who may be able to assist, albeit in a limited way, on top of his responsibilities to his own family.
Given the above, the Tribunal does not accept that any economic hardship that the applicant would suffer if he now returned to Indonesia amounts to the level of a threat to subsistence or other serious harm, having regard to the examples in s.5J(5) required to amount to persecution. The Tribunal is satisfied that the applicant has not raised any other claims and no other claims arise on the facts with regard to his profile either.
Does the applicant have a well-founded fear of persecution if he returned to Indonesia?
Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution involving serious harm if he were to return to Indonesia, now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Indonesia, the Tribunal has noted that 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 relation to the ‘refugee’ criterion.[1]
[1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s individual circumstances and the relevant country information discussed above, and having regard to the findings of fact set out above, the Tribunal also finds that there are not 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 that he will suffer significant harm as set out in s.36(2A).
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. The Tribunal notes that the applicant’s mother [Ms A] was also in Australia and also a protection visa applicant, but it has no information on the substance of her claims, and on the applicant’s evidence, she has returned to Indonesia and has not been granted a protection visa.
Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alison Mercer
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 5127

30 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Natural Justice