1802767 (Refugee)

[2024] AATA 4298

1802767 (Refugee) [2024] AATA 4298 (28 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Paul Raymond O'Connor (MARN: 0854511)

CASE NUMBER:  1802767

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Jennifer Ermert

DATE:28 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 28 March 2024 at 12:36pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – fear of harm by ex-stepfathers – intimidation, beating and sexual assault by first, and physical assault by second – chance encounter with first after relocating to work, and his connections with police and judiciary will enable him to trace her – past experiences accepted – passage of time, and now an adult married to citizen of another country, with possibility of residing there – decision under review affirmed

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

CASES
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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 Home Affairs on 22 January 2018 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 5 December 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.  

3. The applicant appeared before the Tribunal on 5 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and grandmother in Indonesia by video link and telephone, respectively. 

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicant was represented in relation to the review.

CRITERIA FOR A PROTECTION VISA

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) (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.

2. 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.

3. 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).

4. 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.

5. 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

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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether or not the applicant is a person in respect of whom Australia has protection obligations either because the applicant is a refugee or a person who engages complementary protection, or because the applicant is a member of the same family unit as such a person who holds a protection visa of the same class as that applied for by the applicant.

Identity and country of nationality

1. The applicant claims to be a citizen of Indonesia. She has provided a certified copy of the biodata page of her Indonesian passport to the Department. In the absence of evidence that the identity document is a bogus document within the meaning of s 5(1) of the Act, the Department has accepted the applicant is a national of Indonesia and has considered and assessed the applicant’s protection claims against Indonesia in relation to s 36(2)(a) and s 36(2)(aa) of the Act.

2. The Tribunal has also considered the certified copy of the biodata page of the applicant’s Indonesian passport on her departmental file. The Tribunal has also had regard to the original of the applicant’s Indonesian [occupation] ID which was sighted at the hearing and a copy of which was provided to the Tribunal.  In the absence of evidence that the applicant is not the person she claims to be, the Tribunal accepts the identity of the applicant and accepts that she is a citizen of Indonesia. 

3. The Tribunal finds Indonesia is the applicant’s country of nationality for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act.

Immigration history and protection claims

1. The applicant is a [Age] year old woman from [City], Sulawesi, Indonesia. The applicant arrived in Australia [in] November 2016 on a Class FA Subclass 600 Visitor visa, and has not departed Australia since.

2. Her protection visa application, which was lodged on 5 December 2016, was made on the basis of fear of persecution from her stepfather who always intimidated and beat her, and who she claimed almost raped her. The applicant claimed she could not return to Indonesia where she was sure to face the same abuse from her stepfather. The police could not protect her. She also could not relocate because her stepfather would find her, possibly with the help of his friends to whom he has told about her. The applicant believed her stepfather might even kill her.

3. The delegate decided the protection visa application without inviting the applicant to an interview. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations under either the refugee criterion or the complementary protection criterion because Indonesia has sufficiently effective state protection available that the applicant can access.

Pre-hearing submissions and evidence at hearing

1. The day before the hearing, the applicant submitted a statutory declaration through her representative which expanded on the claims in her protection visa application.  She further clarified aspects of her claims at the hearing.

2. The applicant confirmed she completed the protection visa application herself.  She claimed that her parents divorced in 2010 around the time she finished [school level], after when she lost contact with her father and did not know his whereabouts.  Within a month or so of the divorce, her mother married her stepfather [Mr A] (who she referred to as Uncle [Nickname A]) on her birthday, which she was not very happy about.

3. After her mother and [Mr A] married, they moved into a rented house together with her mobility-impaired great grandmother and her younger sister. Soon after that her mother left to work in Papua, leaving the applicant, her younger sister, and her great grandmother with [Mr A].

4. The applicant claimed that life with [Mr A] was hell because he would beat her when he came home drunk. He also beat her younger sister but he mostly targeted her because her sister was quite young.  When questioned by the Tribunal about why her great grandmother did not intervene, the applicant claimed her great grandmother was unaware of the beatings because due to her old age and limited mobility, she always stayed in her own room, which was some distance away from the lounge room where the beatings took place. The applicant claimed she did not tell her mother or her grandmother (who lived about 15 minutes away by car) about the beatings because she was scared of [Mr A] who had forbidden her to say anything.

5. During the 2012 Football World Cup, [Mr A] always stayed up late watching TV while she and her younger sister went to bed first. The applicant claimed that one night she woke feeling cold from the waist down – her underpants had been removed and there was something liquid around her legs.  Although the room was very dark, she sensed [Mr A]’s presence from his smell. The applicant was petrified but dared not scream for fear of what [Mr A] might do to her, her younger sister, or her great grandmother.  

6. The applicant claimed that [Mr A] was startled when her mobile phone suddenly lit up and started ringing on her bedside table, and he hurried out of the applicant’s bedroom without his pants on. Fearful that he would return, the applicant pushed a heavy wooden cupboard across the bedroom door which did not have a lock.  The applicant claimed that she sent a text message to her grandmother begging to be picked up, and then spent the rest of the night huddled in fear inside the cupboard.

7. The applicant came out of the cupboard in the morning when she heard the voice of her grandmother, who had come as soon as she got the applicant’s text message. By then [Mr A] had gone from the house. The applicant was so traumatised that all she could do was cry, so her grandmother took her, her younger sister and her great grandmother home.  After she became calmer the next day, the applicant told her grandmother what had happened the previous night.  Despite initially stating she would go to the police, her grandmother ultimately decided against it (which the applicant only found out later) because [Mr A]’s family was very influential locally and had vast networks including within the police due to his father being a key member of the district parliament of [City], so it would be futile to report the sexual assault to the police.  Instead, her grandmother went to [Mr A]’s parents house and raised the issue with them.

8. The applicant continued to stay with her grandmother after the assault as she was too terrified to go home. A week or two later the applicant’s mother came back from Papua after her grandmother contacted her, but to the applicant’s great disappointment, her mother verbally abused and physically assaulted her because she believed [Mr A]’s story that it was the applicant who had seduced him.  Although [Mr A]’s family allegedly called the applicant’s mother subsequently to apologise for what had occurred, the applicant remained traumatised and fearful of [Mr A], as a result of which she never went back home again, staying instead with her grandmother. 

9. As soon as she completed senior high school in 2013, the applicant left [City] for Surabaya to start a new life. She trained to become [an occupation], and moved to Jakarta after 7 months where she looked for work with [companies].  Soon she began working on [work shifts] with [Employer].  

10. The applicant claimed that in 2014 she met her mother (who had by then also moved to Jakarta) for the first time since the sexual assault, and found out that her mother and [Mr A] had divorced. When asked when the divorced occurred, the applicant stated she did not know because she never talked to her mother about [Mr A], but assumed they must have divorced because by that time her mother was married to another man called [Mr B], whom she referred to as Uncle [Nickname B]. The applicant began to visit her mother and [Mr B] at their house on her days off.

11. In November 2015, the applicant met [Mr A] by chance while working on a [work shift].  She was [doing job task 1] at [a part of the workplace] when [Mr A] approached her and said that he would wait for her after [the work shift].  The applicant was so terrified by the sight of him that she spent much of the [work shift] when not [doing job task 2] crying in the toilet.  The applicant claimed that although she managed to avoid [Uncle A] [after the work shift], he went looking for her at the [Employer] staff accommodation a couple of days later. She only avoided him because the security guard refused him entry into the compound. The applicant claimed [Uncle A] visited the compound several more times, but each time the applicant refused to see him.  The applicant also claimed that somehow he got hold of her phone number and that he had called and threatened her because he blamed her for the divorce from her mother.

12. The applicant claimed she was hanging out with her work colleagues on their days off at [a] shopping mall in Jakarta when she bumped into [Mr B] with another woman. The applicant later confronted [Mr B] who initially denied any involvement with the woman, but subsequently became menacing and physically assaulted the applicant. The applicant told her mother what happened but to her disappointment, her mother did not believe her and accused her of trying to destroy her marriage again, and said she never wanted to see the applicant again.

13. The applicant claimed she considered reporting [Mr B] to the police for beating her but in the end chose not to because in Indonesia, those in power and/or with money always win, and she felt she had no chance against someone like [Mr B] who is from a wealth family and who has relatives in high places.

14. The applicant claimed she cannot return to Indonesia because she is fearful of both [Mr A] and [Mr B] and what they might do to her.  She is particularly fearful that they might kidnap and separate her from her daughters.  When asked whether, given she is now married to a [Country] national, it is possible for her to reside in [Country] instead of returning to Indonesia, the applicant claimed she believed that, with their wealth and connections, it would be easy for [Mr A] and [Mr B] to find her even in [Country]. She also heard from her husband that the human rights situation in [Country] is not much better than in Indonesia.

Evidence from the witnesses

1. The applicant’s mother appeared after the applicant and gave evidence by video link. She corroborated the applicant’s claims of sexual and physical assaults at the hands of her former second husband and former third husband. When questioned by the Tribunal why she had changed her mind given she did not believe the applicant previously, the mother admitted that she was misled by lies but changed her mind when her former second husband’s family called to apologise for what happened to the applicant, and when her former third husband started beating her too. The applicant’s mother claimed that her former second husband [Mr A] and his men had called several times asking about the applicant.  She does not know what their intentions were but speculated they sought the applicant because [Mr A] wanted to extract revenge from the applicant for ‘causing their divorce’.  She also claimed she does not know if it would be safe for the applicant to return to Indonesia because with her former second husband’s large networks through his family in [City], they could probably find the applicant if they really wanted to.

2. The applicant’s grandmother, who appeared by telephone, also gave evidence corroborating the applicant’s claims.  She confirmed that she believed [Mr A] sexually assaulted the applicant, and that the applicant’s mother was away when it occurred. She confirmed she had picked up the applicant from the house; that she had spoken to [Mr A]’s mother the next day; and that when she mentioned she was planning to go to the police, [Mr A]’s mother apologised and asked that [Mr A] be given a second chance. The applicant’s grandmother claimed that [Mr A] has enquired about the applicant multiple times, including in person when he went to Manado recently, even though she had told him repeatedly that the applicant has gone to Australia and would never return.  Although she was not sure why [Mr A] is so interested in the applicant’s movements, she did not believe it would be safe for the applicant to return for that reason.

Post-hearing submissions

1. The applicant’s representative made lengthy post-hearing submissions in support of the applicant’s protection claims which can be summarised as follows:

   ·The applicant, as a member of the particular social groups of molested children/ women at risk in the community/ women who have experienced domestic violence, has a well-founded fear of persecution because there is a real chance, based on her first stepfather ([Mr A])’s persistent inquiries about her, that she would be seriously harmed if she returned to Indonesia.

   ·The applicant cannot relocate because [Mr A] would be able to easily find her anywhere in Indonesia through his family’s political connections.  Nor can the applicant obtain effective state protection because [Mr A] could use his family’s connections to influence the police and judiciary to avoid prosecution for any serious harm constituting criminal offence caused to the applicant.

   ·Alternatively, the applicant engages complementary protection obligations because there is a real risk that she would suffer significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment as a necessary and foreseeable consequence of her removal from Australia, and that such risk cannot be removed through relocation or state protection since neither option is available to her.

REASONS FOR THE DECISION

1. For the reasons that follow, the Tribunal finds the applicant does not meet s 36(2) because she is not a person in respect of whom Australia has protection obligations. 

Credibility

1. The starting point in determining whether the applicant engages Australia’s protection obligations under s 36(2) of the Act is to assess the credibility of the applicant’s protection claims and evidence in support of those claims.  In doing this, the Tribunal is aware of the importance of adopting a reasonable approach in making credibility findings. In Guo v MIEA (1996) 64 FCR 151, the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary comments made by Foster J at [94]:

   “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.”

1. The Tribunal also notes the United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1992) states at paragraph [196] 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.”

2. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make a finding with confidence it must proceed to assess the claim on the basis that it might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220.

3. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

4. Having considered the applicant’s claims and oral evidence as well as the evidence of the witnesses, the Tribunal accepts the applicant was beaten and almost raped by her first stepfather [Mr A] as claimed. The Tribunal also accepts that despite running away to start a new life and working her own way to a position as [an occupation], the applicant had the bad luck of encountering [Mr A] again in the course of her employment and being traumatised as a result, which was exacerbated by his subsequent visits to and inquiries about her at the [Employer] staff accommodation. Whilst the Tribunal has some doubts as to whether [Mr A] contacted the applicant directly to threaten her because the Tribunal has doubts as to how he could have got hold of her mobile phone number, the Tribunal is prepared to accept that this might be true in the absence of evidence to support a contrary finding.  

5. Importantly, the Tribunal notes the strong emotional and physical responses that recalling her near-rape and her mother’s initial lack of support, and her subsequent encounters with [Mr A], caused in the applicant during her evidence.  She sobbed uncontrollably and was shaking visibly and involuntarily.  Considering that such responses are typical and consistent with those that might be expected from someone who has experienced significant trauma, and considering the applicant’s trauma was either caused or exacerbated by individuals who were supposed to be her protective parental figures but who breached that trust, the Tribunal finds the applicant’s emotional and physical responses during the hearing augmented the credibility of her claims with respect to [Mr A].

6. As for the applicant’s claims with respect to her second stepfather [Mr B], the Tribunal has some reservations about the veracity of the claim that, upon being confronted by the applicant about being seen with another woman, [Mr B]’s responses escalated so quickly from denial to physical assault of the applicant. However, in the absence of evidence that the claim is untrue, the Tribunal proceeds on the basis that [Mr B] did respond to the applicant’s questions about his infidelity in the manner claimed.  

7. In summary, the Tribunal accepts the overall credibility of the applicant’s evidence and claimed experiences of past harm in Indonesia. 

Assessment of refugee status

1. To satisfy the definition of ‘refugee’, the applicant must have a well-founded fear of persecution in Indonesia, and owing to that fear, is unable or unwilling to avail herself of the protection of Indonesia.  This requires an assessment of whether there is a real chance that, if the applicant returned to Indonesia, she would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

2. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

3. For convenience, the Tribunal will deal with the applicant’s claimed fear of harm from her second stepfather [Mr B] first. The Tribunal does not accept there is a real chance that the applicant would be harmed by [Mr B] if she returned to Indonesia.  As stated earlier, the Tribunal is prepared to accept that [Mr B] physically assaulted the applicant after initially denying that he was with another woman when she saw him at the shopping mall. However, just because [Mr B] had physically assaulted the applicant before, it does not necessarily follow that such assault or other forms of harm would occur in the future, even if [Mr B]’s past harm of the applicant could provide a helpful basis for determining the probability of its recurrence.

4. On the basis that the applicant’s mother has since divorced [Mr B] so that whomever he chooses to be with is no longer of any concern or relevance to the applicant or her mother, and in the absence of any substantiating information or evidence that [Mr B] has reason or motivation to harm the applicant over the applicant’s discovery of his infidelity to her mother more than 7 years ago, the Tribunal does not accept there is a real chance that the applicant would be harmed by [Mr B], now or in the reasonably foreseeable future, if she were to return to Indonesia.

5. As for the applicant’s claimed fear of harm from her first stepfather [Mr A], the Tribunal accepts her evidence with respect to what happened to her in the past vis-à-vis [Mr A] and that her experiences, which the Tribunal accepts involved serious harm, have caused her significant and lasting psychological trauma. The Tribunal has great sympathy to the applicant and accepts she has a subjectively and genuinely held fear of any contact with [Mr A] as a result.

6. Nevertheless, the Tribunal does not accept that there is a real chance that the applicant would be harmed if she returned to Indonesia, now or in the reasonably foreseeable future. The Tribunal accepts the witnesses’ evidence that [Mr A] has made inquiries about the applicant, but when questioned about why he has made those inquiries, neither of the witnesses was able to provide a satisfactory response; they either did not know [Mr A]’s intentions, or they said it was to extract revenge from the applicant for being the cause of or contributing to his divorce from the applicant’s mother, which the Tribunal finds is speculative at best. 

7. The Tribunal has also had regard to the fact that the applicant’s last encounter with and experience of harm from [Mr A] was in 2012. Unlike 2012 when she was still a completely dependent minor living in the same household as [Mr A], the applicant is now a grown-up with her own family.  In circumstances where the applicant’s own personal situation has materially changed, the Tribunal does not see what opportunity there is, or in what way, [Mr A] would be able to harm the applicant. 

8. Therefore, notwithstanding the applicant’s claimed fear of harm from [Mr A] which the Tribunal is sympathetic to, given the applicant’s changed circumstances over the lengthy passage of time, and given the Tribunal is not persuaded on the basis of the witnesses’ evidence that [Mr A] has made inquiries about the applicant with the intention to cause her harm if she returned to Indonesia, the Tribunal finds the mere fact he has made inquiries is not sufficient on its own to demonstrate that there is a real chance the applicant would be harmed on return to Indonesia.

9. For the aforementioned reasons, the Tribunal does not accept the applicant has a real chance of being harmed by either of her former stepfathers if she returned to Indonesia, now or in the reasonably foreseeable future. The applicant does not have a well-founded fear of persecution and does not satisfy the definition of ‘refugee’. Therefore, she does not meet the criterion for grant of a protection visa in s 36(2)(a) of the Act.

Complementary protection assessment

1. 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 has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Indonesia, there is a real risk that she would suffer significant harm as defined by s 36(2A).

2. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).

3. For the reasons already discussed, the Tribunal does not accept there is a real chance that the applicant would be harmed by either of her former stepfathers, now or in the reasonably foreseeable future. It follows that the Tribunal does not accept 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 she would suffer significant harm.

4. Therefore, the Tribunal finds the applicant is not a person in respect of whom Australia has protection obligations on the basis of complementary protection under s 36(2)(aa) of the Act.

Other criteria – member of family unit

1. Finally, there is no evidence before the Tribunal to suggest that the applicant is a member of the same family unit as another person who satisfies s 36(2)(a) or (aa) and who holds a protection visa of the same class as that applied for by the applicant. Therefore, the Tribunal finds that the applicant does not satisfy s 36(2)(b) or (c) of the Act. 

DECISION

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

Jennifer Ermert
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.

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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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