1724804 (Refugee)

1724804 (Refugee) [2024] AATA 2460 (9 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1724804

COUNTRY OF REFERENCE: Indonesia
MEMBER:Mary-Ann Cooper
DATE:9 May 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 May 2024 at 4:42pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – employment – economic conditions – health services – return visit to Indonesia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
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 9 January 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 20 December 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in s 36(2) of the Act and was not a person in respect of whom Australia had protection obligations under s 36(2)(aa).
The Tribunal wrote to the applicant on 15 August 2023 noting that his file was being prepared to give to a Tribunal Member and seeking that he provide certain pre-hearing information. The applicant relevantly responded on 21 August 2023 as follows:
I hereby request to adjourn the trial because my condition is still grieving over the death of my parents (my father). I hope my application will be considered by AAT.
Problems I faced prior to applying for a permanent protection visa included hurdles in Indonesia in a 2016 case where I was tricked by one of the agents into applying for my student visa, and I was burdened with responsibilities that came with me. What exists is paying back the loan for payment of previous visa arrangements. But so far the steps I have faced while in Australia since 2016, and in 2018 I got a job that can support my career in Australia so far. I have worked for a company engaged in [industry 1] at [Employer 1].
I know my problems have been solved in Indonesia, so I have to be able to return to Indonesia. But what I hope is that I can continue to contribute to Australia in the future. Have adapted so far to my living environment in Australia. Because Australia has a very high tolerance. I hope that my trial can be postponed for a certain period of time. I don't mean acquitted from trial, but just a time delay. I am also very grateful thus far to the Department of Home Affairs and the Administrative Court of Appeal for providing me with support during my time in Australia.
With this letter, which I correctly and sincerely state, the request for a postponement of hearing can be given to me. I hereby enclose a number of documents that may be used as material for consideration in postponing my hearing. Thus the application letter that I wrote, thank you for your attention and cooperation.
Yours faithfully,
[the applicant]
He attached documents including photographs of his father’s funeral, a copy of his 2019 ‘Best Attendance Award’ from his employer along with several copies of passports and visas.
As no hearing had then been scheduled, the Tribunal did not respond to this request. Some time later, on 29 January 2024, the Tribunal invited the applicant to a hearing on 22 March 2024 advising, among other things, that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. On 13 March 2024 the applicant responded, requesting a postponement of the hearing as follows:
Respectfully Sir or Madam….
I with this letter, I would like to request an extension of the trial date on March 22
2024. This month March 2024, I will do so commemorating my father's death (1
year ago), our family held a prayer event together this month. I would like to
request that my trial be postponed pending my situation my mind has calmed
down and I can attend the next hearing. I ask your attention and cooperation. I
would like to express my gratitude.
On 14 March 2024 the Tribunal responded to the applicant advising that his postponement request was granted. The Tribunal invited the applicant to give oral evidence and present arguments at a further hearing rescheduled for 19 April 2024. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to that hearing in accordance with s 441A(5).
On 12 April 2024 the applicant again requested a postponement stating
‘with this letter I would like to ask for consideration to extend my trial until June 19, I am still completing all the documents I need to prepare for the trial. there are some documents that I haven't gotten to at this time. I hope my decision can be considered until June 19 as per my agreement for the hearing. Thank you for your attention and cooperation. I would like to express my gratitude.’
As the applicant had had considerable time to prepare his documents for the hearing, having made his review application in 2017 and having been aware since August 2023 that his application was to be allocated for hearing, and having already been formally allowed one postponement, the Tribunal declined his request by email on 17 April 2024. The Tribunal advised it would consider his request for further time to provide documents at the hearing and, if necessary, may allow him the extra time.
On 17 April 2024 the applicant responded on the form provided with the hearing invitation advising that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further steps to allow him to appear. In the same document however, he also indicated that he wished to rely on documents at the hearing but did not supply an outline of them as requested. He also indicated that he required an Indonesian interpreter. Because of these apparently contradictory responses, the Tribunal contacted the applicant by telephone (unsuccessfully) and email on 18 April 2024, seeking clarification and advising the option for him to appear by telephone or video. The applicant relevantly responded that :
I have made that decision. If the request for an extension of trial time cannot be extended. I leave all decisions to tomorrow’s hearing. I hope that this trial can provide me with the preparation of documents that I need to prepare in more detail. Thank for your attention and cooperation.
His intentions were still unclear from this response and, out of an abundance of caution, the Tribunal responded to him by email on 18 April as follows:
I confirm that the request for a postponement has been declined and, unless you confirm by return email that you will be attending the hearing tomorrow either personally or by phone or video, a decision will be made on the material currently before the Tribunal as requested in your previous correspondence.
If you have any questions or are experiencing problems opening the document/s attached to this email message, please contact us immediately at [email protected], or call 1800 228 333
The Tribunal received no further communication from the applicant and he did not appear on the date and at the time of hearing. Consequently the Tribunal proceeds to make a decision on the material and evidence before it, as requested by the review applicant.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has considered the evidence on the Department and Tribunal files and relevant material from other sources. The applicant provided a copy of the delegate’s decision to the Tribunal.
Country of nationality
Section 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. The complementary protection provisions, at s 36(2)(aa), refer to a person being removed to a ‘receiving country’, which is defined at s 5(1) as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has provided his Indonesian passport issued [in] 2015. There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Indonesia and as such his protection claims will be assessed against Indonesia as the country of reference and ‘receiving country’ respectively.
Personal background
According to copies of the applicant’s passport, he was born in Medan, Indonesia on [date]. His protection visa application indicates he is of the Buddhist faith and has previous employment in a [business 1] in [Country 1] and as a manager of a [business 2] in Jakarta.
He arrived in Australia [in] October 2016 on a [tourist] visa and applied for the protection visa on 20 December 2016.
The delegate’s decision, provided to the Tribunal by the applicant, notes that the applicant has made his protection claims against Malaysia and, even accepting that the this may have been inadvertent, considers his claims are incomprehensible. He was not satisfied that there is a real chance that, if the applicant returns to Indonesia, he will be persecuted for one or more of the reasons in s 5J(1) of the Act. In relation to complementary protection, the delegate again notes that the applicant did not make his claims against Indonesia, his country of citizenship. Even if the country named was inadvertent, he again finds the applicant’s claims incomprehensible and accordingly is not satisfied that he fears significant harm if he is returned to Indonesia. Accordingly, the delegate concluded that the applicant is not a person in respect of whom Australia has protection obligations.
Refugee assessment
Section 5H(1) of the Act provides that 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. As noted above, the applicant’s nationality is Indonesian, and he is outside that country.
Section 5J of the Act provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
In his protection visa application, the applicant claims he is seeking protection in Australia so that he does not have to return to Malaysia. There is nothing in the Department’s file or the Tribunal’s file which demonstrates he has any connection with Malaysia, other than stamps on his passport indicating he briefly travelled there, as well as [Country 2] and [Country 1]. I have therefore inferred that this reference to Malaysia in his protection visa application was inadvertent and the applicant in fact makes his claims against Indonesia, his country of citizenship.
In relation to those claims, he states he left the country because ‘the issue economic impact is as bad as the long-term effects on public health.’ He claims that he suffered harm in the country and when asked to give details responds ‘Psychological, mental and emotional.’ He also responds with this phrase when asked ‘What do you think will happen to you if you return to that country’ and whether he thinks he will be harmed on his return. In relation to whether he sought help he answers, ‘I was suggest by my friend, [Friend A], to stay at Australia’. When asked if he moved or tried to move to another part of the country to seek safety and whether he thinks the authorities could or would protect him, he states ‘the government can’t solve this problem, because the currency is lower.’ He further responds that he is unable to relocate because ‘many dies caused by can’t afford to buy drugs.’
In considering these claims, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out (MIEA v Guo (1997) 191 CLR 559, 596). A decision-maker is not required to make the applicant's case for him or her (Prasad v MIEA (1985) 6 FCR 155,169-70). It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437, 451).
As far as can be ascertained on the material available to the Tribunal, the applicant claims he left Indonesia because the state of the Indonesian economy is such that the currency is low, the public health system is inadequate, that ‘many dies because can’t afford to buy drugs’ and that he is suffering ‘psychological, mental and emotional’ harm. There is no further detail or material supporting his claims in this regard.
Having regard to these claims, the Tribunal notes country information concerning Indonesia which indicates that its economy, notwithstanding the impact of COVID, has high growth and decreasing poverty.[1] It states:
2.7 According to the World Bank, Indonesia’s economy is the largest in Southeast Asia and sixteenth largest globally, as measured by GDP. Indonesia saw year-on-year GDP growth of 5 to 6 per cent between 2010 and 2019, before a fall in 2020 during the first year of the COVID-19 pandemic. The economy recovered in 2021, with 3.7 per cent GDP growth and strong indications of further growth in the years ahead. According to the International Monetary Fund, the economy grew 5.3 per cent in 2022, and projects growth of 5 per cent in 2023.
…
2.9 Poverty has more than halved since the turn of the century. According to March 2022 data from Statistica Indonesia, Indonesia’s Central Bureau of Statistics, the poverty rate was 7.5 per cent in urban areas and 12.29 per cent in rural areas, and the poverty line was IDR 505,469 per month (about AUD 50). While the numbers of those in poverty are falling, a substantial number of Indonesians are vulnerable to falling into poverty, with some estimates of the ‘near poor’ numbering about 20 per cent or more of the entire population.
[1] Australia. Department of Foreign Affairs and Trade. DFAT Country Information Report Indonesia (24 July 2023). (DFAT Report).
In relation to the currency reference by the applicant, while the Indonesian rupiah declined early in 2024, Bank Indonesia notes that ‘the rupiah bounced back in February 2024’ as a result of various policies implemented by the Bank and is ‘projected to strengthen in the latter half of 2024.’ [2]
[2] Arnoldus Kristianus Bank Indonesia Anticipates Fed Rate Cuts in H2 2024 to Boost Rupiah January 31 2024 Jakarta Globe (jakartaglobe.id); Bank Indonesia News release 21 February 2024 BI-Rate Held at 6,00%: Synergy Maintaining Stability and Reviving Growth
And further, regarding the applicant’s public health claims, DFAT reports:
2.16 Article 28H of the Constitution guarantees citizens the right to obtain medical care, while Article 34 obliges the state to provide medical and public service facilities. Responsibility for health service delivery in Indonesia has been devolved to the district level since the early 2000s, and health services vary in quality and availability between districts.
2.17 In January 2014, Indonesia began the implementation of a National Health Insurance Scheme (JKN), Indonesia’s universal healthcare system. DFAT understands that most of the population is now covered by the JKN, with citizens and those living in the country for more than six months required to register for the scheme.[3]
[3] Above, n1

In relation to mental health, it adds:
2.19 Mental health, including depression and anxiety, is poorly understood, and not widely accepted by most health providers and the general public. Services are limited or unavailable in most places, and access is affected by stigma, both from society and individual social and family groups. Admitting that a member of one’s family is living with mental illness can bring shame on the whole family and so are often not admitted, much less treated.[4]
[4] Ibid.
The Department of Home Affairs document, ‘Common claims Indonesia’ states in relation to Indonesian healthcare services (footnotes omitted)
Most Indonesians have access to at least a basic level of healthcare however there is a shortage of healthcare infrastructure and personnel. The Constitution provides citizens the right to obtain medical care and mandates the state provide medical care and facilities to citizens. The state’s obligation to provide healthcare is legislated through various national laws and regulations, including the most recent 2023 omnibus health law. Indonesia has a universal healthcare insurance scheme and the majority of Indonesians have access to at least basic healthcare. The availability of healthcare services varies across the country, particularly between urban centres and remote or difficult to access rural areas. Not all public hospitals in all districts and provinces can treat common chronic illnesses such as cancer, cardiovascular and kidney disease. Approximately ten percent of public hospitals lack practicing anaesthesiologists, surgeons, gynaecologist, obstetrician and paediatricians. A lack of healthcare infrastructure, specialists and costs, has led to around two million Indonesians travelling abroad for medical services and treatments annually. The 2023 health law aims to improve the delivery of healthcare by introducing telemedicine services; address shortages of qualified medical professionals; improve the quality of healthcare services; and reduce numbers of citizens obtaining medical services abroad.[5]
[5] Australia. Department of Home Affairs. Common claims Indonesia. Effective from 26 October 2023, p11.
While this information indicates that the Indonesian healthcare system is less than ideal, particularly in relation to mental health services, there is nothing before the Tribunal that demonstrates or even suggests that the applicant has been harmed or suffers from any illnesses, mental or otherwise. Even if the Tribunal accepts he has, is or will experience mental health problems, without more, there is insufficient information to establish that the applicant fears harm for the essential and significant reason either of race, religion, nationality, political opinion or membership of a particular social group as required by ss 5J(1)(a) and 5J(4)(a).
Therefore, having taken into account all the information before it, there is insufficient detail in the material provided by the applicant to establish that he fears harm and, if so, the nature of the harm he fears, why he fears it, whether it amounts to serious harm and whether there is a real chance that he will be subject to serious harm if removed to Indonesia. Accordingly, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution as defined by s 5J of the Act.
It follows that the Tribunal is not satisfied that the applicant is a refugee within the meaning of s 5H(1)(a) and therefore, for the above reasons, he is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection assessment
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). That is, whether he satisfies the Tribunal he is a non-citizen in Australia in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
As previously noted, the applicant’s account of his experience in Indonesia is difficult to comprehend, is unsupported and lacks necessary detail.
The available country information concerning Indonesia, as outlined above, indicates that its economy, notwithstanding the impact of COVID, has high growth and decreasing poverty [6] and there is a positive outlook regarding the currency.[7] While the Indonesian health services can ‘vary in in quality and availability’ and mental health services are limited and in some areas ‘unavailable’, as noted above, there is nothing before the Tribunal that demonstrates or even suggests that the applicant has been harmed or suffers from any illnesses, mental or otherwise or there are any grounds for believing that, as a necessary and foreseeable consequence of his removal to Indonesia, he will suffer significant harm as defined (s 36(2A)).
[6] Above, n1.
[7] Above, n2.
Even if the Tribunal did accept there are substantial grounds for believing that there is a real risk that he will suffer significant harm on his return, s 36(2B)(c) of the Act applies insofar as it provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. The health system and the economic situation in Indonesia clearly apply to its population in general, not the applicant personally.
In this context, absent more information or detail from the applicant, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Indonesia, that there is a real risk he will suffer significant harm as defined.
It follows that the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal has also had regard, when considering both s 36(2)(a) and s 36(2)(aa), to the applicant’s reference in his correspondence of 21 August 2023 to his difficulties in repaying a loan in Indonesia. It notes however that the applicant later states in that correspondence ‘I know my problems have been solved in Indonesia, so I have to be able to return to Indonesia.’ Nothing in the material before the Tribunal indicates that the applicant’s circumstances have changed in this respect.
CONCLUSION
Having considered the applicant’s claims individually and cumulatively, the Tribunal has concluded that the applicant does not meet the refugee criterion in s 36(2)(a) or the alternative criterion in s 36(2)(aa). It follows that the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under either provision.
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.
Mary-Ann Cooper
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.
…

[2024] AATA 2460

9 May 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Natural Justice