1726929 (Refugee)

[2024] AATA 2584

1726929 (Refugee) [2024] AATA 2584 (26 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726929

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Lisa Lo Piccolo

DATE:26 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 June 2024 at 4:59pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – political, legal and socio-economic conditions – application prepared with assistance of friend and claims not pursued at hearing – new claim of borrowing money from loan sharks – documentation for bank loan provided, with substantial amount repaid – working in Australia to pay off loan – claim of notice of repossession but bank does not hold land/house title as security – previous loans from loan sharks and family paid off – not significant economic hardship threatening capacity to subsist – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (4)(b), (5)(d), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
BBK15 v MIBP (2016) 241 FCR 150
MIAC v SZQRB [2013] FCAFC 33
MIBP v WZAPN [2015] HCA 22; (2015) 254 CLR 610
MZYPB v MIAC [2012] FMCA 226
SZBQJ v MIAC [2005] FCA 143
SZIGC v MIAC [2007] FCA 1725

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Indonesia, applied for the visa on 10 January 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy s 36(2) of the Act. 

3. The applicant appeared before the Tribunal on 19 February 2024 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

Refugee criterion

1. 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.

2. 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).

3. 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.

4. 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) and (c).

5. 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.

6. A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).  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.

7. Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim.  The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim.[1]  The Tribunal also 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 of the Act.[2]

   [1] See ABT16 v Minister for Home Affairs [2019] FCA 836.

   [2] Abebe v Commonwealth of Australia (1999) 197 CLR 510.

Complementary protection

1. 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’).

2. Section 36(2A) of the Act makes provision for, and exclusively defines that a

   
   

   non-citizen will suffer significant harm if: they will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the non-citizen; or the non-citizen will be subjected to torture; or the non-citizen will be subjected to cruel or inhuman treatment or punishment; or the non-citizen will be subjected to degrading treatment or punishment.[3]

   [3] Torture, cruel and inhumane treatment or punishment and degrading treatment and punishment are further defined in s 5(1) of the Act.

3. The circumstances in which a person will be taken not to face a real risk of significant harm are set out in s 36(2B), which states the Minister is to be satisfied: that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm (s 36(2B)(a)); or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm (s 36(2B)(b)); or the real risk is one faced by the population of the country generally and is not faced by them personally (s 36(2B)(c)).  The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply.[4] However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.[5]

   [4] BBK15 v MIBP (2016) 241 FCR 150 at [32].

   [5] The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245 and MZAAJ v MIBP [2015] FCA 478) indicates that s 36(2B)(c) will apply where a real risk is faced by an individual applicant but is the same as the risk faced by the general population.

Mandatory considerations

1. 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.

2. The current DFAT report is the DFAT Country Information Report Indonesia dated 24 July 2023 (DFAT Report).

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Country of nationality

1. The applicant travelled to Australia on an apparently genuine Indonesian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Indonesia, and he has been assessed on that basis by the Department. The Department was satisfied that his Indonesian passport was a genuine document. 

2. The Tribunal finds he is a Indonesian citizen and has assessed his claims Indonesia as his country of nationality and the receiving country.

BACKGROUND

1. The applicant is a [Age]-year-old man.  He was born in [Semarang] in Indonesian. In his Protection visa, the applicant stated he belonged to the Javanese ethnic group and identified his religion as Sunni Muslim. He is married and has [children] living in Indonesia.  His mother and father and [siblings].  He indicated that he had undertaken [a Subject] course at the [Institution] and was an ‘entrepreneur’ in Indonesia.  

2. At the hearing, the applicant told the Tribunal he worked as an entrepreneur in Indonesia.  He explained that his wife would manage the business and he would buy [product 1] from [specified people] and then resell it to [stores].  His wife is still in Indonesia lives in their home [in] East Java.  She is a self-employed [occupation].  She does [job tasks], as well as [products] which she sells to [stores].  She meets her expenses and makes a small profit, but he still supports her.  Both his children work in Surabaya. His mother and father have both passed away, along with [some siblings].  He is still in contact with his other [siblings]. All his father and mothers siblings have passed away.

3. The applicant arrived in Australia [in] December 2016 on a Tourist visa FA 600 which ceased on 4 March 2017.  The applicant applied for the subclass XA-866 visa (Protection visa) currently under review on 10 January 2017.

4. The applicant told the Tribunal that he came to Australia with the intention to work.  He wanted to work in [work sector].  He also told the Tribunal that he applied for the Protection visa because he wanted to work,  A friend had briefed him about the visa and said that if he applied for protection he will ‘definitely have work rights’ and that is ‘easiest way to get work rights’.  That was his ‘rationale’ for applying for the Protection visa.  Since he arrived in Australia, he has been working in [work sector] doing seasonal [job tasks].  His nett income used to be $1200-1300 per week, but ‘lately, he has been receiving $1500-1600 per week. 

5. The Tribunal accepts the above matters to be true.

The applicant’s claims for protection

1. In his Protection visa application, in answer to the question why he left Indonesia, the applicant stated:

   I left my own country because distrust of the judiciary and low enforcement,, poor system of government, bureaucracy starting from the lowest leve[l] up to the top.  The destruction of the global economy impact on the nations economy.  Poverty and unemployment are still big, due to such problems, as the people of Indonesia, I [have] been living in harsh condition so I had to borrow money from my relatives because of that I finally could not pay the debt.  I live in mental distress and fear.  Many people in Indonesia have problem like ma, who borrowed money had been hit, injured and killed.

2. He provided the following information in answer to the listed questions about his protection claims:

   a.What do you think will happen if you return to [Indonesia]?
   I will get caught by creditor and could be beaten, injured or killed.  They will be searching [for] me.

   b.Did you experience harm in [Indonesia]? 
   

   The applicant answered ‘yes’. 

   
   

   He claimed that he had received verbal threats from them to hurt him and he lived in hardship because of bad economy.

   c.Did you seek help within [Indonesia] after the harm?
   

   The applicant answered ‘yes.’  He claimed that nothing happened because it is a matter of economy of the country, and ‘they’ consider it a personal problem.

   d.Did you move, or try to move to another part of [Indonesia] to seek safety?

   The applicant answered ‘no’. 

   
   

   He did not try to move to another part of Indonesia because this is a matter of socio-economics and he will experience the same problem even if he relocates to another place within Indonesia.

   e.Do you think you will be harmed or mistreated in [Indonesia] if [you] return to Indonesia?
   

   The applicant answered ‘yes’.

   
   

   He claimed that he will live in harsh conditions and suffer discrimination as Indonesian people.

3. The applicant was not invited to attend a hearing with a delegate and did not submit any evidence in support of his claims prior to the primary decision being made. 

Tribunal review application

1. At the Tribunal hearing, the applicant told the Tribunal that a friend assisted him to prepare the Protection visa application.  The applicant ‘briefed’ him on the reason he was seeking protection, namely, that he had borrowed money from Indonesia.  At the hearing, the applicant told the Tribunal that his claims relate to his fear he will lose his land, and or be forced to borrow money from loan sharks, if he cannot continue making payments towards the loan he had. The remaining tangential aspects of the claims in his Protection visa application were not pursued by the applicant at the hearing.

2. As to the history of the loans the applicant has taken out, the applicant gave the following evidence:

   a.In 2005, he took out a loan for IDR $200,000,000 with [Bank 1].  The repayments were IDR $9,000,000 each month.  He did enter a written contract, but he no longer has the paperwork.  The loan was for 3 years.

   b.In 2009 or 2010, he took out a loan with [Bank 2].  The loan was partly to pay out the capital and interest of loan owing to [Bank 1].  The repayments were IDR $13,000,000 each month.  He did enter a written contract, but he no longer has the paperwork.  The loan was for 4 years.

   c.In 2012, he refinanced again, this time with [Bank 3] and this loan was for IDR $1,000,000,000.  This loan paid out the capital and interest owing on the [Bank 2] loan. The repayments were IDR $15,000,000 each month.

   d.He has paid IDR $1,000,000,000 and owes approximately IDR $200,000,000.  The applicant told the Tribunal he pays repayments in the amount of IDR $15,000,000.  The Tribunal notes, that after the hearing, the applicant submitted a statement from [Bank 3] indicating that interest accrues at IDR $2,500,000 per month and his monthly repayments are IDR $15,000,000.  The statement indicated that, as at 15 February 2024, he owed IDR $240,126,573.  Based the interest and repayments to the date of the Tribunal’s decision, the current balance owing is approximately
   IDR $ 190,126,573.[6]

   e.He would repay the balance of the loan in one year if he continued working in Australia.  He told the Tribunal he was hoping to stay here until July 2024 then he can repay the loan and get more capital to start again in Indonesia.  He said he has no savings, but he does own his home in Indonesia, and he only has his wife to support.

   f.If he returns to Indonesia, he would return to buying and selling [products] and supporting his wife’s business and would expand the business into buying and selling other products.  The Tribunal queried if he could negotiate the terms of the loan with [Bank 3] since he has paid a substantial amount of the loan.  The applicant said he would be in default, and it would be hard to renegotiate the terms.

   [6] Equivalent to AUD 17,425.47 as of 26 June 2024:

3. In terms of his claims in the Protection visa application that he would owed money to relatives and that he would be caught by creditors and could be beaten, injured or killed, the applicant gave evidence at the hearing that:

   a.He has a loan with [Bank 3] and fears that if the loan repayments are not met, he risks the bank taking his land (home) and/or motor vehicle and selling it/them to repay the loan.  He has, in the past, received notice that the bank would exercise their right to repossess his land (house) for the purpose of paying off a loan in default, but he has never been threatened by a bank.  On the Tribunal’s enquiry, the applicant informed the Tribunal that his land title (house) is not being held or kept by the [Bank 3] as a security for his loan and he has the title deed.  He did raise any fears of physical harm from anyone at [Bank 3].

   b.He has borrowed money from his family in the past, but he does not have any outstanding loans to them.  He has never been threatened by family.  The threats he received in the past were from loan sharks to take his personal belongings as payment of a loan, but he was never physically harmed by a loan shark.  He did not explain this clearly in the Protection visa application because he had taken out so many loans with loan sharks he was ‘confused’ when he briefed the friend who helped him prepare the Protection visa application.

   c.At the time of the Protection visa application, he was fearful of what might happen at the hands of a loan shark, but now he does not fear any loan shark and does not have any outstanding debts to any loan shark. 

   d.He fears if is forced to return to Indonesia now, he would not be able to repay his loan to [Bank 3], and would be in financial trouble again, and have to borrow from loan sharks in the future.  He has taken loans from loan sharks in the past for 2-3 days when he had to make repayments on the bank loans and did not have the money.  He fears he might then be threatened by a loan shark regarding the taking of his personal possessions if he cannot repay the loan, and the loan shark would turn up at his house and take his things. 

Claims regarding economic hardship and loan repayment

1. The Tribunal notes that the applicant’s claims regarding the [Bank 3] loan principally related to economic harm, namely, a fear that he will lose his land (home), motor vehicle or other personal possessions if he cannot continue making repayments towards the [Bank 3] loan. 

1. The applicant said that he only needed until July next year to pay off the loan and hoped to remain here until then so he can ‘overcome his life’s challenges.’  The Tribunal informed the applicant that in order to be entitled to a protection visa, he must face a real chance of serious harm in Indonesia, or there must be substantial grounds for believing that as a necessary and foreseeable consequence of removal to Indonesia, there is a real risk he will suffer significant harm. The Tribunal provided examples of serious harm and significant harm to the applicant. The Tribunal explained to the applicant that considering his wife had a profitable business and he had previously worked with his wife in that business, and he would return to work in and grow that business, the loss of his land (home) may not amount to serious harm or significant harm. The Tribunal informed the applicant that this may not entitle him to protection in Australia.

2. The Tribunal finds that the applicant does not face a real chance of serious harm in the reasonably foreseeable future if returned to Indonesia as a result of his land being repossessed by [Bank 3].  This is because, the Tribunal does not accept that the applicant will have his land repossessed if he cannot earn enough money to repay the loan to [Bank 3].  The applicant confirmed with the Tribunal that the land title is not being held by [Bank 3], and is not security for [Bank 3], which means [Bank 3] does not have a right it can exercise to repossess his land (house) for the purpose of paying off a loan in default.  In circumstances where the applicant’s title deed is not being held as security for the [Bank 3] loan, the Tribunal finds that it is farfetched or remote that the applicant is at risk of having his home repossessed if he defaults on the loan repayments.

3. The Tribunal also does not accept the applicant’s evidence that he could not seek to vary the terms of his loan (including the repayment amount) which may involve refinancing, or that requesting to do so would result in him being in default of the loan.  The evidence before the Tribunal demonstrates that the applicant was able to refinance previous loans on two previous occasions.  There is no evidence before the Tribunal to indicate this option would be available to the applicant since he would be able to offer his land title as security for any variation or refinancing of the loan.  It would also be possible for the applicant himself to elect to sell the land before any action is taken by the bank. 

4. The Tribunal is also not satisfied that if the applicant had to sell the land to repay the debt, which effectively resulted in him losing the land, it would amount to serious harm as defined in s 5J(5) for the purposes of s 5J(4)(b), being significant economic hardship that threatens the applicant’s capacity to subsist.  The Tribunal has considered s 5J(5) - specifically s 5J(5)(d), which provides that significant economic hardship that threatens the person’s capacity to subsist is an instance of serious harm.  The Tribunal has also had regard to judicial authority indicating that a threat to subsistence as referred to in ss 5J(5)(d)–(f)[7] must be at a level that challenges the ability of the individual to continue to exist or remain in being,[8] that the hardship must be such that it would actually threaten the applicant’s capacity to subsist[9] and involves a qualitative assessment.[10]

   [7] These authorities relate to the former s 91R(2)(d)–(f) but are equally applicable given their similar wording.

   [8] See; SZBQJ v MIAC [2005] FCA 143 at [11]) that ‘the level of threat must be such as to challenge the ability of the individual to continue to exist or remain in being’: and SZIGC v MIAC [2007] FCA 1725 per Greenwood J at [23]. See also; MZYPB v MIAC [2012] FMCA 226 at [13] and DZABS v MIAC [2012] FMCA 297 at [90].

   [9] MZYPB v Minister for Immigration and Citizenship [2012] FMCA 226 at [13]. In MZYPB, the Court

   [10] see Minister for Immigration and Border Protection v WZAPN[2015] HCA 22; (2015) 254 CLR 610 at [5] per French CJ, Kiefel J (as her Honour was), Bell and Keane JJ.

5. The applicant’s land does not provide the livelihood of the applicant and is not at risk of being seized unjustly or unlawfully. The Tribunal acknowledges the applicant’s fear that if he returned to Indonesia, he would earn a lower salary than what he currently earns in Australia.  However, considering the applicant has previously run a profitable business with his wife in Indonesia, which his wife continues to run, and the applicant’s own evidence, that he is an entrepreneur and intends to return to Indonesia to grow that business to sell other products, the Tribunal finds the applicant would return to Indonesia and work in the business and has good prospects of making an income.  The Tribunal also finds that, on the evidence of the applicant, the applicant would live in the home he owns in Indonesia. For these reasons, if he returned to Indonesia now or in the reasonably foreseeable future, the Tribunal is not satisfied that the applicant would be denied the capacity to earn a livelihood where the denial threatens his capacity to subsist.

6. The applicant has not claimed he would face a threat to his life or liberty, significant physical harassment, significant physical ill-treatment, denial of access to basic services, or any other kind of physical or psychological harm.

7. For the above reasons, the Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution if returned to Indonesia now or in the reasonably foreseeable future.

Fear of a loan shark in the future

1. The Tribunal has also considered the applicant’s claim that he might need to borrow money from an illegal moneylender (loan shark) in the future to make his repayments to [Bank 3] and may have his personal belongings taken as payment for the loan by the loan shark if he cannot repay the loan shark. 

2. The Tribunal found his evidence in this regard to be extremely vague and, at best, speculative.  The applicant accepts that the applicant will be earning less than he has in Australia and will continue to have obligations to meet his repayments to the bank.  Notably, the amount of the repayments to [Bank 3] are the same in 2024 as they were when the applicant entered the loan with the bank 12 years ago and was living and working in Indonesia.  On the applicant’s own evidence, he has had loans with 3 major commercial banks in Indonesia since 2005.  The repayment amount for [Bank 3] loan has been IDR $15,000,000 since 2012 and on the evidence before it, the applicant managed to service it prior to coming to Australia, without having any action taken against him by the bank.  The Tribunal accepts this was partly due to him taking out small short-term 2–3-day loans from time to time with loan sharks.  However, the evidence indicates that the applicant has always repaid the loan shark and he has never had any of his personal belongings taken by a loan shark.   

3. Accordingly, whilst the Tribunal accepts that he may take out a loan from an illegal moneylender in Indonesia if the need arises in the foreseeable future, it does not accept that the applicant faces a real chance of serious harm amounting to persecution if returned to Indonesia now or in the reasonably foreseeable future.  Based on the evidence, there is a remote chance that the applicant would not repay the loan shark or that the loan shark would take the applicant’s personal belongings as payment for the loan.  

4. Given these above considerations, the Tribunal is not satisfied that if the applicant returns to Indonesia now or in the foreseeable future that there is a real chance, he will have his land or other personal possessions taken by a loan shark or a real chance the applicant will face serious harm as a result.  The Tribunal is not satisfied that these matters give rise to a real chance that the applicant would suffer serious harm in Indonesia.

5. Having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Indonesia now or in the foreseeable future that there is a real chance, he will face persecution.

Does the applicant meet the complementary protection criterion?

1. The Tribunal has also considered whether 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 he will suffer significant harm such that he meets the complementary protection criterion under s.36(2)(aa).

2. In considering this criterion, the Tribunal must consider whether the applicant will suffer significant harm.  Significant harm is exclusively defined in s36(2A). 

3. For the reasons set out above, the Tribunal has found the applicant does not face a real chance of serious harm. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[11] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows that the Tribunal is not satisfied 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 he will suffer significant harm in any of these ways.

   [11] MIAC v SZQRB [2013] FCAFC 33 (Lander, Bosanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Bosanko and Jagot JJ at [297], Flick J at [342].

4. The Tribunal has accepted that the applicant fears that if he returns to Indonesia, he will earn a lower income than he has in Australia and has an ongoing loan with [Bank 3].  As noted at paragraph 37 above, the applicant has good prospects of making a living in Indonesia, given his prior work experience and business entrepreneurship.

5. The applicant does not suggest that any economic harm he may suffer in Indonesia could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. The applicant also does not suggest that the death penalty will be carried out upon him.  In the Tribunal’s assessment, these circumstances do not come within the scope of significant harm as defined in s 36(2A) of the Act.

6. Based on these findings, it follows that the Tribunal is not satisfied that the applicant’s fear that he cannot meet his bank repayments or may be required to take out an additional loan would constitute significant harm as defined by s36(2A).  Such harm would not amount to arbitrary deprivation of life, infliction of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment of or to the applicant. As to cruel, inhuman or degrading treatment or punishment of or to the applicant, there is also no intentional infliction of such economic harm upon the applicant (or his family) by any person.

7. 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)(aa).

Conclusion

1. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.

2. 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 ss 36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the applicant does not satisfy the criteria in s 36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Lisa Lo Piccolo
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.

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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.

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1. Protection visas – criteria provided for by this Act

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1. 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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rejected the applicant’s argument that s 91R(2)(d) only required him to demonstrate a threat to his

capacity to subsist.