1720960 (Refugee)

1720960 (Refugee) [2022] AATA 5025 (12 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Khan Kawsar (MARN: 0962474)
CASE NUMBER:  1720960
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Rodger Shanahan
DATE:12 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 December 2022 at 11:44am
CATCHWORDS
REFUGEE – protection visa – Indonesia – political opinion – participant in demonstrations against government corruption – arrested and detained – fear of harm from henchman of corrupt official – credibility – inconsistent and uncorroborated claims and evidence – voluntary returns and delay in applying – one of four applications with nearly identical claims and same postal address – inconsistent evidence about completion of application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 11 August 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 18 August 2016.
The applicant appeared before the Tribunal on 29 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
The applicant was represented in relation to the review.
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-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.
Claims and evidence
Protection Visa Application
The applicant made the following claims as part of his protection visa statement:
I left out of Indonesia in order to avoid a risk of being harmed and arrested by Indonesian government and police (they want to arrest me because I attended demonstrations against government corruption. I really hate corruption. All government officers in Indonesia are corruptive. I attended many demonstrations against government corruption and in January 2009 I was arrested by Indonesian police and was detained for 3 days because I attended demonstration against government corruption. In February 2010 I was arrested by Indonesian police and detained for 4 days because I attended demonstration against government corruption. In April 2011 I was arrested by Indonesian police and detained for 5 days because I attended protest against government corruption. I believe they will arrest me if I still stay in Indonesia.
AAT Hearing
He was asked about a medical certificate that said he was unfit for work for yesterday and today. He said he felt not great as he received bad family news. He was asked if he was able to attend the hearing and he said he would try – it was put to him that the note said nothing about being unable to attend the hearing and he said that he hadn’t told the doctor he had a hearing, just that he needed time off work.
He was asked f he knew everything that was in his protection visa application and if he knew it to be true and correct and he said this was correct. It was put to him that he had said he filled it out by himself with no assistance and he agreed this was the case. It was put to him that he didn’t appear to speak English and he said that he could write it and he understood grammar but that listening was difficult. He agreed he wrote it himself with the help of Google translate.
It was put to him that he appeared to live in [Suburb 1] but had a PO Box in [Suburb 2]. He said that he was helped by a friend to lodge the application but this person went home and he had had no contact with him. His name was [Mr A] and he was from a different island – they used to work at the same place. Asked if he lived with anyone else in [Suburb 1] he said that he lived alone. Asked if it was his PO Box, he said [Mr A] lived there. It was put to him that it was a PO Box. Asked why his home and postal address wasn’t the same, he claimed that [Mr A] helped him because he couldn’t do it himself. It was put to him that he had said before that nobody helped him. He again said that it was [Mr A]’s PO Box but he didn’t know why he had a PO Box.
Asked what [Mr A] did practically to help him, he said that he gave [Mr A] his details and [Mr A] organised the lodgement. It was put to him that he had said in person and on the form that he received no assistance. He said he wrote no name there on his first application but the current one was different. He said that his first PV application in 2016 he was helped by [Mr A]. When it was put to him that there were no other PV application, he said that he meant bridging visa.
He was asked again why he used a PO Box when he had a residential address and he said that he tried for a student visa but was unsuccessful and then [Mr A] helped him. He was asked again why he needed a PO Box, he again said that he got a bridging visa and didn’t need to return to Indonesia. Asked if he completed his study in Australia, he said that he got a Diploma in [Subject].
Asked what fear he held on his return to Indonesia, he claimed that he would be killed by the henchmen of a corrupt official he opposed. He had no other claims. He participated in demonstrations during the election of a regent (provincial governor) around 2009. He was protesting against the regent and telling people to vote against him. The other candidate was now in jail. Asked if he was a leader or just a protestor, he said that he was the leader. Everyone had their supporters and he accused the governor of being a family of corrupt people.
Asked what he was the leader of, he said that he gathered people to oppose the governor. He wasn’t an official leader but just expressed his disagreement. The family hated him personally as a result of him calling them corrupt. He was intimidated, pursued and watched by the people he opposed. Nothing else happened to him. He then said that he as arrested by police and detained for two or three days.
The officials ordered him to be arrested and the police were loyal to them. He asked a friend to get him out of detention and they were successful in bribing the police. He had no photos of himself at demonstrations. He had [Social media] since he was in Australia but did not use it very often. There were no anti-government entries as he didn’t join [Social media] for this reason and didn’t want people to know he was doing it. It was put to him that he could have used a false name.
He was also detained in 2010 but there were no photos of him taken by him or anyone else or the media. He was also detained at a protest against the village chief in 2011 where he also accused the other person of corruption. He was also released after a bribe. There were no photos of him at this either.
Asked why he would still be of interest 11 years later, he said that it wasn’t the authorities looking for him it was the supporters who were given money. Because of his opposition they didn’t receive the money. Asked how anyone would know he was back in Indonesia or care, he said that they held a grudge against him in the lcal area not all of Indonesia.
Asked if he could move elsewhere in Indonesia, he said that would be impossible as he would have to build a house and find work there. He was advised that the idea of protection was that a person didn’t need protection if they could move elsewhere in their country without problems. If the problem was localised and the authorities weren’t after him, he should just move elsewhere. He said he was allowed to but it took money to do this. It was put to him that everyone needed money which is why they had to work.
He said he would experience racism if he went to Macassar as he was Hindu. It was put to him that there were lots of islands in Indonesia. He could move but he wouldn’t feel comfortable away from his home area. It was put to him that feeling uncomfortable wsn;t a reason for protection if he was safe.
Asked if he had returned to Indonesia, he said that he had gone there twice; in 2012 and 2015. He said that he didn’t go to his village and was able to hide. He was asked why he returned if he had to hide, and also that he had claimed in his application that he would be arrested by the authorities if he returned to Indonesia because he had attended anti-corruption demonstrations and yet he returned twice and had not been arrested. He also said that his problem was localised and it raised questions as to why he had to hide if it was localised.
He claimed that he returned for the first time to see his children and stayed in Denpasar for a month and nobody knew as it was [Distance] km from his village. The second time was for three months and again nobody knew. It was put to him that this indicated that nobody was looking for him as he could enter and leave on his own passport and stay in Denpasar. He said that it was the family that was after him, not the officials.
It was also put to him that he didn’t apply for protection for five years after arriving in Australia despite claiming to have been arrested three times before he arrived. This raised questions as to the genuineness of his claimed fear of serious harm. He claimed he didn’t know about the process and when he looked at his visa he saw protection so he didn’t do anything. Asked again why he delayed applying for five years, he said that in his mind he thought he was under protection. It was put to him that he was on a student visa. He was asked when he thought he was granted protection and he said that he was granted a bridging visa in August 2016. He was asked why he delayed applying for protection for five years after arriving in Australia, and he claimed that he didn’t know what visa to apply for when he left Indonesia so he left on a student visa.
It was put to him that when he came to Australia he was fleeing harm, he said that he didn’t know what visa he had to apply for and an agent in Bali told him to apply for a student. He didn’t know about protection – asked what he did to find out, he said that [Mr A] gave him some information but he didn’t know whether it was about protection. He was just happy to be here. He and [Mr A] were [Occupation]s – [Mr A] was from Java.
Asked how [Mr A] came to do his immigration, he said that [Mr A] was also in a bridging visa too. Asked whether [Mr A] was applying for protection, he said that he was and had it before the applicant. He was asked [Mr A] how he could stay in Australia and he gave [Mr A] his ID and [Mr A] did everything else. Asked what he meant by everything else given the applicant said he filled out the form by himself, he said that [Mr A] had a bridging visa but didn’t know anything else about [Mr A]’s immigration status at the time.
He was advised about s 424AA and it was put to him that the Tribunal had been given four Indonesian protection claims (including his), all of which shared the same PO Box and one of whom lived at the same address as the applicant. This person’s claim is nearly word-for-word the same as the applicant’s (with some date changes). The Tribunal was concerned there had been collusion between claimants including the applicant and they had submitted the same generic claim in order to seek to stay in Australia and had used the same PO Box for correspondence. The Tribunal was concerned the applicant hadn’t been truthful and had not filled out the form himself, nor had he attended any demonstrations in Indonesia and was just trying to stay in Australia. The person who had made a very similar claim had also stated that they received no assistance with filling out the form.
He claimed that he didn’t know why the others were the same. He hadn’t met them or knew their names. He was asked if it was a coincidence that they had the same claims, used the same PO Box and one had the same residential address. He said he asked [Mr A] for help and perhaps [Mr A] asked someone else. It was put to him that the Tribunal had concerns that [Mr A] didn’t actually exist. He said that he did work with [Mr A]. He also said that in Indonesia people carried grudges for a long time. It was put to him that this didn’t appear to stop him from returning to Indonesia twice or waiting five years to apply for protection.
He said that he didn’t know about the procedures and he would have applied sooner if he knew to do this.
CONSIDERATION OF Claims and evidence
The applicant is a [Age] year-old Indonesian man who claimed that he would be killed by the henchmen of a corrupt official who he had opposed. The Tribunal accepts that he is an Indonesian citizen.
The applicant also provided a doctor’s certificate just prior to the hearing that said he was unable to attend work for two days and said that it was because he had received some bad news regarding his family. He said that he would try to attend the hearing and the Tribunal is satisfied that he was given a real opportunity to put forward his case and to address concerns with his claims. He showed no signs of distress at all and answered questions without difficulty.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant.
Overall I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely credible, reliable or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.
Collusion
The Tribunal had received a number of claims from Indonesian citizens in a batch of four, of which the applicant’s was one. During my review of them, I noted the similarities not only with the claims but at times with the exact wording within each claim. For example:
a.Current applicant: I left out of Indonesia in order to avoid a risk of being harmed and arrested by Indonesian government and police (they want to arrest me because I attended demonstrations against government corruption. I really hate corruption. All government officers in Indonesia are corruptive… in January 2009 I was arrested by Indonesian police and was detained for 3 days because I attended demonstration against government corruption.
b.Unnamed other applicant: I left Indonesia in order to avoid a risk of being harmed and arrested by Indonesian government. Indonesian government want to arrest me because I attended demonstration against government corruption. I hate those corruptive government officers…In December 2014 I was arrested and detained for ten days because I attended demonstration against government corruption.
All four of them had the same PO Box as their postal address and one other applicant allegedly lived at the same address in [Suburb 1] as the applicant since April 2016. Yet the applicant claimed that he lived alone and that he completed the form on his own with no assistance from anybody else. The applicant claimed that he was able to write English even though he used a Bahasa interpreter and didn’t appear to have a good knowledge of spoken English.
The applicant claimed that he used Google Translate which, while it may provide an explanation for his ability to write his claim in English, it doesn’t account for the similarity of his claim with another person, down to the same incorrect use of the word ‘corruptive’. Later the applicant also claimed that he was assisted by someone called ‘[Mr A]’ although this is inconsistent with his claim on the form and at the start of the hearing that he had been given no assistance in completing the protection visa application.
The similarities in the claims and the language used within them despite claiming to have filled the claim out by himself, the same PO Box as the three other claimants[1], and same residential address as another applicant[2] since 2016 mean that I am satisfied that the applicant has been colluding with other applicants and was untruthful in many of his responses to the Tribunal regarding his living arrangements and the degree to which he has filled out his application form. As a consequence this also goes to the applicant’s credibility.
Political Activity
[1] See files 1721618, 1721904, 1720961
[2] See file 1721904

I do not accept that the applicant ever attended any demonstrations against corruption in Indonesia or accused others of corruption or was ever arrested and detained because of it. This claim relies entirely on his oral testimony without any corroboration, and I have already raised my concerns regarding suspected collusion with other Indonesians regarding this claim.
He was also inconsistent with his claims and his actions. Despite claiming in his protection visa that he would be arrested by the Indonesian police if he returned to Indonesia, he has returned to Indonesia on two occasions – 2012 (one month) and 2015 (three months). He entered on his own passport through the main airport in Bali. This is not indicative of someone who fears serious harm if they returned to Indonesia.
I do not accept that he was able to do this because he stayed in Denpasar which was [Distance] km from his village and therefore his presence wasn’t known in the village. His ability to remain safe simply by staying in Denpasar is inconsistent with his written claim in which he said that ‘there is no safe place for me in Indonesia’. Nor do I accept that he was able to enter Indonesia because it was the family of the gubernatorial candidate that was after him, not the officials. Again, this is inconsistent with his written claim where he stated that the Indonesian police would arrest him and later that the authorities would arrest him.
I have taken into account a submission provided by the applicant’s migration agent the night prior to the hearing however lend it no weight given it is predicated on the applicant having attended anti-corruption demonstrations, something that the Tribunal has found never occurred.
There are other issues that make me disbelieve his claim. Although he claimed that he was afraid to return to Indonesia because of his political activities and multiple arrests, he waited for five years before he applied for protection. The length of this delay is not indicative of someone who fears being killed by corrupt henchmen on return to Indonesia. I do not accept that the delay was because he didn’t know what to do. He could have approached a migration agent in Australia (he had used an agent in Indonesia so would have been aware of their existence), or sought out the immigration department directly, approached an Indonesian community group or even a Hindu group to assist him. In short, there were a range of ways to overcome his unfamiliarity with the system if he had attempted to engage them.
Nor do I accept that it was a person called ‘[Mr A]’ who facilitated his application. Not only does this rely entirely on his oral testimony (which I have already found lacks credibility), it is inconsistent with his claim that he had no assistance in filling out his protection visa application.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant ever attended any anti-corruption demonstrations in Indonesia or accused others of corruption, or was ever arrested or detained, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out n the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
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 the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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.
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[2022] AATA 5025

12 December 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction