1717414 (Refugee)

1717414 (Refugee) [2023] AATA 4554 (1 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Katrina Feghali (MARN: 1174363)
CASE NUMBER:  1717414
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Paul Noonan
DATE:1 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 1 November 2023 at 9.48am

CATCHWORDS
REFUGEE – protection visa – Indonesia – religion – Pentecostal Christian – freedom of religion – proselytising – Indonesia’s Criminal Code – particular social group – single women in Indonesia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
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 27 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Indonesia, applied for the visa on 28 July 2016. The delegate refused to grant the visa on the basis that there is not a real chance of serious harm or a real risk of significant harm to the applicant for reason of her claim to be a born-again Christian should she be required to return to Indonesia and that accordingly her fear of harm is not well-founded. The applicant was not offered an interview by the delegate.
The applicant provided the Tribunal with a copy of the delegate’s decision. The applicant appeared before the Tribunal on 25 October 2023 to give evidence and present arguments.
The applicant was represented in relation to the review. The Tribunal had regard to the Department file and submissions made to the Department by the applicant as well as submissions made by the applicant and her representative both prior to and after 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 (Cth) (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–5LA, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on an apparently genuine Indonesian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Indonesia and she has been assessed on that basis by the Department. The Tribunal finds she is an Indonesian citizen and has assessed her claims against Indonesia as the country of nationality and the receiving country.
The applicant’s background
The applicant was born in [year]. She told the Tribunal that she was born into a Christian family of the Lutheran denomination. Her family are all practising Christians and reside in the Indonesian capital of Jakarta. The applicant stated that she was always a regular church attendee in Indonesia. In the year 2000 she became a born-again Christian and joined the local Pentecostal church known as [Church 1], which she was introduced to by her cousin. She stated that she had made this move when she was “in a dark place” which she attributed to the divorce of her parents and “partner problems”. Since joining [Church 1] she has remained an adherent to the Pentecostal faith.
In 2004 she spent a year in [Country 1] living with her cousin. She attended a local Pentecostal church while there. She first came to Australia in 2011 to attend [Church 2] events. She explained that [Church 2] is an Australian Pentecostal church which [Church 1] is aligned to. After this first trip of one month she again travelled to Australia on five other occasions to attend [Church 2] events.
Before the Tribunal are a great many third-party written testimonies with respect to the applicant’s long history of attending Pentecostal churches and events in Indonesia and Australia, including testimony from priests from such churches. There are also many photos of her attending such events.
The Tribunal accepts the above to be true and finds that the applicant is a follower of the Pentecostal Christian faith.
Does the applicant have a well-founded fear of persecution?
The applicant’s Pentecostal faith
The applicant confirmed that her written claim to fear persecution for reason of her religion still correctly reflects her reason for fearing persecution in Indonesia. When asked to discuss what she fears and why, should she be required to return to Indonesia, she stated that she now enjoys widely sharing the gospel in Australia and she fears the reaction of Indonesian society should she do the same in Indonesia and she fears that the police will arrest her as a result. The Tribunal noted that in her application for protection she had stated that she had spread the word of the gospel for many years in Indonesia as a member of the church and that, while there were some objections, there was no suggestion she had suffered serious harm. The Tribunal noted that this may reflect she could continue to do so should she return there. The applicant stated that she now wishes to spread the word of the gospel to “all mankind” and this would not be possible in Indonesia.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
The Tribunal discussed with the applicant that she has long been a follower of the Pentecostal faith both in Indonesia and Australia. Further that she had travelled between Indonesia, [Country 1] and Australia on many occasions without making any claims for protection for many years. The Tribunal discussed with the applicant that this history may cause it to be concerned that her fear of persecution is not genuinely held as she had travelled many times to and from Indonesia while being a follower of the Pentecostal church and had not sought protection despite having many opportunities to do so. The applicant submitted that she had only become aware of the protection visa option after many years, having engaged in open proselytising as part of her [Church 2] attendance in Australia. She then realised the protection visa might be a way to stay in Australia so that she could continue this open expression of her faith.
The Tribunal discussed with the applicant that the practices and beliefs of her church in Indonesia, [Church 1], are aligned with the [Church 2] and the Pentecostal belief system in general, as set out in the country information set out in the delegate’s decision (which was supplied by the applicant to the Tribunal). Further that she had been an active member of [Church 1] for many years. The Tribunal noted that this may lead it to conclude that she would be able to resume as a member of this church and follow her Pentecostal faith in Indonesia without risking persecution. The applicant agreed that she had shared the gospel with people outside of the church in Indonesia however she had been circumspect in how she did so and would only do so with Muslims who she knew well. She agreed that she had worshipped and hosted people at her church in Indonesia.
The Tribunal discussed with the applicant the manner in which she seeks to proselytise to the general public in Australia. The applicant described and has submitted photos of herself handing out small cards with the insignia love and God. She described how she will try and engage with people if they accept the card and then only if they stop and have a conversation with her. She stated that she wants to serve the salvation news to everyone. She also puts up posters. She undertakes these engagement activities three or four times a month often before church service. The Tribunal noted that the delegate’s decision set out information with respect to [Church 2] which states that it provides advice for evangelism around being humble and patient when talking to others and not forcing your views on them. The Tribunal put to the applicant that her approach may appear to be in accordance with this advice. The Tribunal then discussed relevant country information from DFAT which assesses that 10 per cent of the Indonesian population is Christian, that freedom of religion is guaranteed under the Indonesian Constitution and that apostasy is not a crime in Indonesia and religious conversions do occur.[1] The applicant agreed that Indonesia is a diverse religious country, however, that it is all confined to a place of worship and that there is a law for outreach whereby people who engage in proselytising will be disturbing the peace which she fears she will be charged with.
[1] DFAT Country Information Report – Indonesia, 24 July 2023, 3.18, 3.21. p.13
The Tribunal has carefully considered the potential impact of the disturbing the peace claim by the applicant. Amnesty International has issued a report with respect to the introduction of a new criminal code which it highlights is a dramatic rollback of human rights progress in Indonesia.[2] This report notes that the government has maintained imprisonment as a penalty for defamation and religious blasphemy, while retaining treason provisions that could further curtail the rights to freedom of opinion and expression as well as freedom of religion or belief.
[2] Indonesia: New law is a ‘significant blow’ to human rights | Amnesty International UK (accessed 27 October 2023)
As discussed with the applicant, DFAT assesses that “Indonesia’s Criminal Code prohibits acts or words that insult one of the official religions. The Electronic Information and Transaction Law (ITE Law) also makes it an offence to deliberately disseminate information aimed at inciting hatred or using blasphemous or heretical language”.[3] The Tribunal noted that persons of all religions including Muslims have been charged with this and that overall DFAT assesses that religious minorities face a low threat of blasphemy allegations being made against them.[4]
[3] DFAT Country Information Report – Indonesia, 24 July 2023, 3.29, p.14
[4] Ibid 3.29, 3.33, p.14
The Tribunal discussed with the applicant that the country laws, when considered in conjunction with her respectful and sensitive methods of proselytising, may suggest that there is no real chance of persecution towards her for reason of her employing the same proselytising methods in Indonesia, as she would not be seen to be inciting hatred or using blasphemous or heretical language. The applicant responded that, in regard to her activities, she does seek to bring people to church and this will be seen as undermining Islam. She stated that she was a Pentecostal for 20 years in Indonesia and there are no outreach activities at all. The society is not respectful to other religions. Her religion wants salvation for everyone. [Church 2] is grace based and you are worthy. The “Indonesian church is born-again Christian but you have to live in a holy manner and they worship but [Church 2] is different in that it states to go out and preach the gospel”.
The Tribunal discussed further country information with the applicant that reflects DFAT’s assessment that Christianity is Indonesia’s second largest religion and there are several parts of the country in which it is the majority religion. There are Christians in every province of Indonesia. Many Indonesians of Chinese descent are Catholic. Along with the Catholic church, many Protestant churches operate in Indonesia, including mainline Protestant churches (especially Lutheran denominations), and evangelical and Pentecostal churches, as well as non-denominational independent churches. Christians are generally able to practise their faith freely throughout Indonesia. In general, Christians have good relations between denominations and with other religions, including regular dialogue and a generally peaceful coexistence.[5] Further that Christians residing in Christian-majority areas do not face either official or societal discrimination and that there is an overall low risk of violence towards Christians in conservative Muslim-majority areas.[6] Further that in 2023 the US State Department assessed that many of Indonesia’s religious freedom violations against religious minorities are perpetrated by local governing authorities, far outside the control of Indonesia’s central government.[7]
[5] DFAT Country Information Report – Indonesia, 24 July 2023, 3.37, p.15
[6] Ibid, 3.14, p.15
[7] 2023 USCIRF Annual Report (accessed 19 October 2023)
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
The Tribunal discussed with the applicant that this country information may lead it to conclude that there would not be a real chance of serious harm to her in a large urban area such as Jakarta, where she previously resided for many years without encountering serious harm. The Tribunal has considered various sources of country information submitted by the applicant highlighting attacks on Christians and notes that these report religiously motivated violence against Christians in relatively isolated Muslim-majority areas. The applicant responded that in her view, whatever she does, society in general thinks that she will try and convert people. If someone asks her what is the difference between Islam and Christianity she would say “it is good deeds with Islam but in Christianity God gives salvation”. As such she submitted that she would be in danger.
The Tribunal has also considered the applicant’s representative’s submission that in Indonesia there would be a restraint placed upon the applicant’s practice of her faith. In a post-hearing submission, the applicant’s representative submitted that the applicant would be forced to modify her behaviour by avoiding a core tenant of her faith to proselytise in order to avoid serious harm and further that the laws of the Indonesian state discriminate against born-again Christians by refusing to allow them to practise their faith freely.
The Tribunal does not accept the submission that the state prevents born-again Christians and Pentecostal adherents from practising their faith. In fact, country information cited and discussed with the applicant, reflects that freedom of religion is guaranteed under the Constitution and that adherents of these particular churches do not face any form of discrimination in Christian-majority areas.
The Tribunal has carefully considered the applicant’s evidence with respect to her proselytising methods and expression of her views, and the impact of Indonesia’s blasphemy laws and is satisfied that there is no real chance of serious harm to the applicant for reason of adverse interest from the authorities such that she would be charged under these laws, using her standard methods of proselytising that she now employs in Australia, should she undertake such activity in a large urban area such as Jakarta or in a Christian-majority area. The Tribunal is also satisfied that there is no real chance of serious harm to the applicant from members of society more generally or Islamic fundamentalists in such areas for reason of her practising her religion, as she did for many years with some previously employed forms of outreach and proselytising activities, without suffering serious harm. There is no suggestion in any of the evidence before the Tribunal, and the Tribunal does not accept, that the applicant would seek to expand her worshipping and proselytising activities to a conservative Muslim area that is largely outside of the central government’s control such as Aceh where there would be a real chance of serious harm to her for reason of her religion.

Overall, the Tribunal is satisfied that the applicant can safely return to Jakarta in Indonesia and continue practising her religion without needing to modify her behaviour with respect to the practice of her religion to avoid a real chance of persecution. As such the Tribunal finds that there is not a real chance of serious harm to the applicant for reason of her religion should she be required to return to Indonesia either now or in the reasonably foreseeable future.
A single woman
During the course of giving her evidence to the Tribunal the applicant also submitted that, as a single woman, she would be more vulnerable preaching. When asked to extrapolate on this claim she submitted that she would not be harmed as a single woman but she would be pitied. She then clarified that she would be better protected while proselytising if she had a partner. For completeness the Tribunal has considered the situation for single women in Indonesia separate from the issue of the applicant’s religion for which it has already found there is no real chance of persecution.
The Tribunal noted that DFAT assesses that single women experience a moderate risk of societal discrimination. DFAT is not aware of official discrimination against single women.[8] Some women choose to move to Jakarta for more independence. This option may not be available to women who are financially dependent on their families or lack work connections in their hometown or in Jakarta.[9] When this potential fear was discussed with the applicant, she stated that she did not fear harm for reason of being a single woman but rather felt that if she was not single her partner would afford her more protection from adverse interest with respect to her religion. In any event the Tribunal notes that the applicant would be returning to Jakarta, which is specifically cited as being an option for single women by DFAT, and that she would have the support of a community associated with her church there, as well as her immediate family. The Tribunal is satisfied, given these factors, that there is not a real chance of serious harm to the applicant should she be required to return to Jakarta in Indonesia for reason of her being a single woman, either now or in the reasonably foreseeable future.
[8] DFAT Country Information Report – Indonesia, 24 July 2023, 3.96, p.23
[9] Ibid, 3.93, p.23
Conclusion – persecution
As the Tribunal has found that there is no real chance of serious harm to the applicant either now or in the reasonably foreseeable future for reason of her religion or membership of the particular social group of single women it follows that her fear of persecution is not well-founded.
Complementary protection
The Tribunal has also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). The Tribunal has considered whether it has 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, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm if she returns to Indonesia related to her religion or membership of the particular social group of single women in Indonesia. In MIAC v SZQRB [2013] FCAFC 33, 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 Refugees Convention definition.
Noting the findings as detailed above, it follows that 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 that the applicant will suffer significant harm.
Overall conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of 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.
…

[2023] AATA 4554

1 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing