1729793 (Refugee)

1729793 (Refugee) [2022] AATA 1540 (4 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1729793
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Damian Creedon
DATE:4 April 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 4 April 2022 at 8:57am

CATCHWORDS
REFUGEE – protection visa – Indonesia – fear of harm for political, economic and employment reasons – brief membership of informal student religious activist group – vague claims and evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 2 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant, a [Age]-year-old citizen of Indonesia, arrived onshore on in October 2014 holding a Student (TU572) visa.
The applicant applied for a protection visa on 18 May 2017 and was granted a bridging visa which remains in force.
Protection visa application
In his protection visa application and supporting materials the applicant claims to fear returning to Indonesia for political, economic and employment reasons.
Claims
In his protection visa application, the applicant makes a series of claims which may be summarised as follows:
a.The applicant states that looking at terrorists and Islamic activities around the state and the world raised fear in him and his parents.
b.The applicant and his family are Sunni Muslims; however, he fears for his life in a Muslim country, and therefore asked his parents to send him overseas to study so he could live in a safe place and leave a “fearful and insecure country”.
c.He has come across people at his “own place” who commented and discussed “unlawful matters”, and this caused fear for the applicant.
d.He is afraid to return to Indonesia as he had heard, saw and listened to “unlawful matters” since he was 16 years old.
e.He did not attempt to relocate as he is young, and he was unsure what part of Indonesia would be safe for him.
f.He did not think that the authorities would protect him otherwise he would not have felt fear.
g.He has heard and witnessed several incidents to “establish that the authorities will do little”.
The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegate’s decision.
Application for review
The applicant was not represented in relation to the review.
Evidence
The Tribunal has before it a range of material, including, relevantly:
a.A copy of the applicant’s Indonesian Passport;
b.The applicant’s protection visa application forms dated 3 August 2017;
c.The delegate’s protection visa decision record dated 2 November 2017, a copy of which the applicant provided to the Tribunal (delegate’s decision record); and
d.The review application form lodged with the Tribunal on 27 November 2017.
The Tribunal has also had regard to the Department of Foreign Affairs and Trade (DFAT) “DFAT Country Information Report Indonesia”, 25 January 2019 (DFAT Report).
Hearing
The applicant appeared before the Tribunal on 30 March 2022 to give evidence and present arguments.
Applicant’s oral evidence
The following is a summary of the applicant’s evidence to the Tribunal:
a.The applicant is [Age] years old and arrived in Australia in October 2014; his parents and his [sister] are resident in Indonesia. His home city is Jakarta. He is recently married (December 2021) and has no children. His wife is an Indonesian national whom he met in Australia. The applicant is of the Sunni Muslim faith and attends Mosque in Perth. He stated that he is not working in Australia.
b.The applicant completed his high schooling in Indonesia. After leaving school the applicant worked with a friend in his small business, selling [Products].
c.When asked by the Tribunal what motivated him to come to Australia, the applicant stated that he wished to pursue study here. When pressed by the Tribunal, the applicant stated that he changed his study pathway from “[Subject 1]” to “[Subject 2]”, but that he did not complete any study in Australia. When further pressed, the applicant agreed with the proposition that he found study in Australia difficult. The applicant stated that he wanted to work and stay in Australia; when pressed, the applicant stated that he wished to reside in Australia.
d.When asked by the Tribunal what it was that he feared about returning to Indonesia, the applicant stated to the effect that when he was a “kid” “people” involved him in “terrorism”.
e.When pressed by the Tribunal as to who these “people” were, the applicant stated that they were a group comprising people at his high school; when pressed as to the nature of the group, the applicant stated that they gave him a book justifying terrorism in the name of religion; when further pressed, the applicant stated that the “book” was printed out from the internet.
f.When asked whether he was pressured to join the group, the applicant stated “not really”, but that over time he was “pushed a little bit”.
g.The applicant stated that the group did not have a name and that no adults were involved as far as he was aware, however, he stated, there may have been if he had progressed further with the group.
h.When asked whether he could simply decline to be involved with the group, the applicant stated that he had attended “three or four times” and then left. When he left, he stated, he was “pushed” to return to the group.
i.When pressed as to whether he was “encouraged” or “forced” to return to the group, the applicant stated he was forced; when further pressed the applicant stated that no physical force was used, but he agreed with the proposition that he felt “peer pressure” from members of the group.
j.When asked what types of things were discussed at the meetings he attended, the applicant stated there were as there were “still a lot of new people in the group” terrorism was not discussed:
More like “we are doing the good things”.
k.When pressed by the Tribunal, the applicant stated that violence was not discussed by the group, but that they said, “it’s not wrong”.
l.The applicant stated that the group presented itself and a “good and smooth” way and discussed Islam at the meetings and about how to make the religion “more powerful”.
m.The applicant stated that his involvement in the group, and the pressure he felt, occurred while he was in high school in 2010. He stated that his school was a “private religious school” and that his parents are devout Muslims. He stated that they encouraged him to become devout in his faith and that he attended the local Mosque in his suburb in Jakarta.
n.When asked what he feared about returning to Indonesia now, the applicant stated that he was concerned that the group would “look for him again”. When asked whether he could simply say to the group that he was not interested in joining the group, the applicant stated that “they” might offer him a job or money; when further pressed as to whether he could simply refuse these enticements, the applicant stated that it was “not as simple as that” and that he would be offered “a lot of good things” and “they could force me back to the group” as he had a lot of friends outside the group who the group would be interested in.
o.When asked whether, if he was being forced to join the group against will, he could complain to the police, the applicant stated that there may be a link between the group and the police “or another authority”; the police or authority can ignore his complaint.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria of a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Assessment of Claims and evidence, and findings:
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, that 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 of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Analysis of claims
The applicant’s claim that “people” involved him in “terrorism” when he was a “kid” was unsubstantiated by his oral evidence. When pressed on this claim, the applicant’s evidence centred upon a “group” he was exposed to during his high schooling in 2010, some 12 years ago. When asked whether he was forced to join the group, the applicant spoke only of “social” or “peer” pressure to do so. The group comprised his peers at school and he attended “three or four” meetings before leaving. His evidence is that the group was pro-Islamic, but that violence and terrorism were not directly discussed by the group, though he claims he was given a book by the group which “justified terrorism”; this latter claim is uncorroborated. When asked whether there were any adults guiding the group, the applicant alluded to their perhaps being, if he “progressed further” in the group. Overall, the Tribunal found the applicant’s evidence on these issues to be hesitant, vague, and shallow.
DFAT notes the following in respect of the security situation in Indonesia:[1]
Terrorism is a threat in Indonesia, as in much of the world. A Catholic church was attacked in February 2018 and a series of incidents occurred in May 2018, including church bombings and suicide and sword attacks in Surabaya and Pekanbaru. ISIL, or groups linked to ISIL such as Jamaah Ansharut Daulah (JAD) have claimed responsibility for, or inspired, a number of recent attacks and, as with many other countries, Indonesia is concerned at the risk posed by fighters returning from conflicts in the Middle East and the Philippines. Many returning fighters had no combat experience while overseas and others have come back disillusioned by their experiences. This does not necessarily mean that they have been deradicalised or no longer pose a threat.
Recent terrorist attacks have focussed on state institutions as their primary target, in particular police. Churches have also been attacked (see Christians). Attacks against western interests occur but are currently less frequent, for example, the January 2016 attack at a Starbucks café in Jakarta, the bombings of the JW Marriot and Ritz Carlton hotels and the Australian embassy in 2004 and 2009 and the Bali bombing of 2002.
Indonesia’s elite anti-terrorism force, Detasemen Khusus 88, commonly known as ‘Densus 88’ or ‘Detachment 88’ is effective in investigating and disrupting terrorist attacks. Densus 88 has detected and prevented many JAD inspired or organised attacks. Smaller operations and lone wolf attacks are harder to detect.
Active armed insurgencies against the central government, for example in Aceh, have largely ceased. Small-scale violent secessionist activities continue in the Papua provinces (see Secessionists in the Papua Provinces). Indonesian authorities continue to conduct security operations against the remnants of the Santoso terrorist networks in Central Sulawesi province after Indonesian police killed its eponymous ISIL-linked leader in July 2016.
…
Extremist recruiters target all Indonesian Muslims, including mainstream Muslims, but DFAT is not aware of reliable reports of forced recruitment practices by ISIL or other extremist groups. ISIL-linked Indonesian groups have been known to recruit via social media, suggesting a voluntary propaganda-based campaign. Newspaper and in-person recruiting has been reported, but with no suggestion of forced recruitment.
[Tribunal’s emphasis.]
[1] DFAT Report, paras [2.41] – [2.44]; [3.31]
The Tribunal extends the benefit of the doubt to the applicant and assumes in his favour that a group of the nature he described existed at his school. There is, however, no evidence before the Tribunal that the group described by the applicant was of a sophistication beyond that to be expected of high-school students. There is nothing in the applicant’s evidence or the country information reviewed to suggest that, if he is returned to Indonesia now or in the reasonably foreseeable future, he is at risk of being forced to join or re-join any group in his home country against his wishes.
In the context of the country information cited the Tribunal finds the applicant’s concerns at being enticed against his will to re-join the group he described, or to be at risk of recruitment against his will into terrorist or other “unlawful” activities, if he returns to Indonesia to be mere speculation on his part not amounting to a well-founded fear.
The Tribunal finds, therefore, that the applicant does not have a well-founded fear of persecution on this basis, nor is he at risk of significant harm should he return to Indonesia.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Indonesia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Indonesia. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

The Tribunal has considered the applicant’s claims under complementary protection.
On the information and evidence before it, the Tribunal finds that any social pressure or enticement faced by the applicant in Indonesia would not involve the applicant being arbitrarily deprived of his life or being subjected to the death penalty. The Tribunal finds that experiencing some social pressure or enticement does not involve the applicant being subjected to torture, or to cruel or inhuman treatment or punishment. It does not involve his being subjected to degrading treatment or punishment. The Tribunal finds that any social pressure or enticement the applicant may encounter if he is returned to Indonesia would not be “significant harm” as that term is defined in the Act, and that there would therefore not be a real risk that he would suffer significant harm for this reason as a necessary and foreseeable consequence of his being returned to Indonesia.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Indonesia now or in the reasonably foreseeable future.
The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to Indonesia. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). His fear of persecution is not well-founded as required by the Act and therefore he is not a refugee.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia that there is a real risk that he will suffer significant harm.
Overall conclusion:
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 the Act 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.
Damian Creedon
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.
…

[2022] AATA 1540

4 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Appeal