1803861 (Refugee)

1803861 (Refugee) [2024] AATA 2679 (9 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1803861
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Mark Oakman
DATE:9 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 April 2024 at 3:04pm
CATCHWORDS
REFUGEE – Protection Visa – Indonesia – borrowed money from loan shark – applicant confirmed he did not fear anyone harming him if he returned to Indonesia – economic disadvantage does not amount to serious harm – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 Home Affairs on 9 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Indonesia, applied for the visa on 16 January 2017. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 14 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
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RECEIVING COUNTRY
The applicant provided a copy of his Indonesian passport. He stated in his protection visa application that he was a citizen of Indonesia and confirmed the same at the hearing. Based on that documentary and oral evidence, I accept that the applicant is a national of Indonesia. Indonesia is the receiving country for the purpose of this assessment.
MIGRATION HISTORY
The applicant arrived in Australia on [date] December 2016 on a visitor visa. He lodged an application for a protection visa on 16 January 2017.
Background
According to information given by the applicant in his application and at the hearing, he is[age] years old and was born in [Town 1], Jawa Timur, Indonesia, where he lived in the family home throughout his time in Indonesia. He married in 2003, separated shortly after he came to Australia, and divorced in 2018. His daughter was born in [year] and lives in the family home with the applicant’s father. His mother recently passed away. He is Javanese and Muslim. He speaks, reads, and writes Indonesian and (a bit of) English. He completed senior high school in Indonesia (up to 1999). In Indonesia he worked in [a] [business]. In Australia he has worked for the last three and a half years [on] a farm, he was unemployed in 2020 and before that worked for a few months on a [farm] and in [a field].
Evidence before the Department
In the protection visa application lodged 16 January 2017, the applicant made the following claims (Part C, Q88-96):
·I am seeking protection in Australia so that I do not have to return to – Indonesia.
·Why did you leave that country? –Living hand to mouth in a depressed economy, forcing me to the easy way to get money, I borrowed money from loan shark. With hope to double the money, I bet most of the money. Unfortunately I lost. I do not have a steady job. I cannot afford to pay my debt. Debt collectors came looking for me and hurt me. I decided to escape and came here for my safety.
·What do you think will happen to you if you return to that country? – If I return to Indonesia, they will continue to hurt me as long as I did not pay their money. Maybe they will do the worst for me. I hope so much Australian government can protect me and let me stay here.
·Did you any experience harm in that country? – Yes (ticked). I was beaten several times every time they come to collect debts. They also threaten me to hurt me worse if I still cannot pay the debt.
·Did you seek help within the country after the harm? – No (ticked). I never asked for help from anyone because it is more of a personal matter.
·Did you move or try to move to another part of the country to seek safety? – No (ticked). I do not know where to go because I have no other family that is able to help me.
·Do you think you will be harmed or mistreated if you return to the county? – They will track and continue to beat me as long as I did not pay their money. They also may kill me if they see me because I borrowed huge amount of money from them.
·Do you think the authorities of that country can and will protect you if you return? – No (ticked). I have asked help from several charities, but they could not help me because I borrowed money in a very big amount.
·Do you think you would be able to relocate within that country? – No (ticked). I am not able to relocate within the country because they have member and gang everywhere around Indonesia. It will easier for them to find me and hurt me.
The applicant was not invited to an interview with the delegate.
Evidence before the Tribunal
The applicant lodged his application for review with the Tribunal on 14 February 2018 in relation to the refusal to grant his protection visa.
On 5 October 2023, the applicant emailed the Tribunal a completed pre-hearing information form. Under the heading Protection Claims, among other things, the form asks ‘Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country?’. The applicant responded:
·I have unpaid debt because I fear loan between too high. I am afraid to return because I can’t pay very big amounts and debt collectors are still looking for me in Indonesia. I will stay in Australia that guarantees my safety here.
The applicant appeared before the Tribunal in person on 14 February 2024 to give evidence and present arguments. Where relevant, the applicant’s oral evidence at the hearing is referred to in my analysis below.
Analysis, reasons, and findings
The applicant said at the hearing that he left Indonesia because he had a lot of debts and was being chased by debt collectors. He confirmed he did not leave Indonesia for any other reasons. He was asked what he fears would happen to him if he returned to Indonesia. He said that before his mother died, whom he had been supporting before she passed away with her medications etc, she told him not to come back to Indonesia because otherwise who would be able to support the family. He would have to start from zero if he returned to Indonesia and pay off some 4-500 million IDR debt that remains, as well as support his father and daughter. If he goes back to Indonesia, he is not confident that he can support his daughter’s education and have enough for his old age. He also supports his younger brother who cannot work following an accident. It may be difficult for him to get work and pay off the debts. He confirmed that he did not fear anyone harming him if he returned to Indonesia, it was just the financial issues he had discussed during the hearing and his concern about, although he has been able to make payments on his debts while in Australia, how he can support his family and pay off the remaining debts in Indonesia.
He provided information about his debt history and situation including:
·he owed debts while in Indonesia including to some banks including a named bank, ‘Bank A’, his relatives, his in-laws, a number of smaller ‘illegal’ banks/lenders (they lend without collateral and are mainly online these days), and to someone he described as a ‘boss’ who was involved in his area of business.
·From about mid-2015 until he left Indonesia at the end of 2016, each day debt collectors would come looking for him to get some payment. There were around three debt collectors, one from Bank A, one from the boss and one from a collection of the smaller illegal lenders. With the first two debt collectors, they would demand money and he would pay if he had some money, if not they’d give him time. The debt collectors for the illegal lenders would occasionally take goods from his parents’ home when he couldn’t make a payment and they would make threats. He described the threats as just words and bullying. His relatives and in-laws have not used debt collectors.
·He paid off about 600 million IDR in debt and interest before he left Indonesia. He received an inheritance through his (then) wife and sold it to help pay the debts. Since he has been in Australia, he has paid off about another 300 million IDR in debts. He sends money to his sister who makes the payments to the lenders and keeps the various records. His repayments to his in-laws he makes through his daughter. He has since paid off the debts to the illegal lenders and to the boss. He still owes about 100 million IDR to Bank A, 60 million IDR to relatives and 250 million IDR to in-laws, which together with interest amounts to about 500 million IDR. While in Australia he had some contact with the boss about the debt, but not since it had been paid off. While in Australia he has had no direct contact with Bank A.
·Bank A’s loan is secured against his father’s house and land. His in-law’s debt is in his name and ‘illegally’ secured against a certificate to some of his sister’s property. When asked to explain what he meant by illegally, he said it is not with any government or bank involvement, it is just based on mutual trust.
He was asked about the claim in his protection visa application that he had been beaten but that he had not otherwise mentioned during the hearing. He said it was a private matter. His (then) wife had a debt and when some men came about it, he had protected her. He said it was a misunderstanding, and he was finished with them. He did not fear being beaten again by those men if he returned. His concerns were those things he had talked about.
The applicant impressed the Tribunal as a credible witness. In his protection visa application and at the hearing he provided generally consistent information about his family, education, and employment history, and I accept those details as summarised in the background above. At the hearing he provided generally detailed and consistent information about his reasons for leaving Indonesia, his financial history, and his fears, based on his financial situation, if returned to Indonesia. I accept that he was frequently visited by about three debt collectors in the 18 months or so before he left Indonesia; that the debt collector(s) for the illegal lenders would occasionally take goods from his parents’ house when he couldn’t make a payment and they would threaten and bully him; and that he left Indonesia because of his debts and the debt collectors. I accept that he was beaten once in Indonesia when he was protecting his (then) wife and that the matter has since resolved and he does not fear harm in this regard if he returns to Indonesia. I accept that the general financial history he gave at the hearing, including that he has paid off his debts to the illegal lenders; he has paid off his debt to the boss; and he currently owes around 500 million IDR in loans and interest to Bank A, his relatives, and his in-laws.
The applicant did suffer harm in Indonesia, from a beating when he was defending his (then) wife by men pursuing a debt she owed and from bullying, verbal abuse and the taking of some goods from his family home by debt collectors for the illegal lenders. However, the problem involving his (then) wife was resolved and he has paid off his debt to the illegal lenders since he has been in Australia. He confirmed he did not fear anyone harming him if he returned to Indonesia. He said towards the end of the hearing, that he doesn’t know what might happen if he can no longer make repayments on the current loans if he retuned to Indonesia. To the extent he may have been suggesting that he might be harmed by these lenders, given that his current loans are from a mainstream bank, his relatives and his (ex)in-laws, I consider it highly speculative to suggest that any of these lenders would, like the debt collectors for the illegal lenders, resort to harming the applicant if he had problems servicing their loans in future. Overall, I do not accept that the applicant was of adverse interest to anyone in Indonesia after the issue involving his (then) wife was resolved and he paid off the debt to the illegal lenders, or that he may be of adverse interest to, or that he faces a real chance of suffering harm from anyone, if he were to return to Indonesia, now or in the reasonably foreseeable future.
As discussed, at the hearing, the applicant raised concerns about financial difficulties such as problems finding employment, supporting his family, and paying his current debts, if he were to be returned to Indonesia.
DFAT reports that, according to the World Bank, Indonesia’s economy is the largest in Southeast Asia and sixteenth largest globally, measured by GDP. Indonesia saw year-on-year GDP growth of 5-6 per cent between 2010 and 2019 but fell in 2020 during the first year of the COVID-19 pandemic. The economy recovered in 2021, with 3.7 per cent GDP growth and strong indications of further growth in the years ahead. According to the International Monetary Fund, the economy grew 5.3 per cent in 2022, and projected growth of 5 per cent in 2023. Major industries include resources, agriculture, and manufacturing, with the services sector having an increasing impact on the economy. Poverty has more than halved since the turn of the century, with March 2022 data from Statistica Indonesia indicating the poverty rate as 7.5 per cent in urban areas and 12.29 per cent in rural areas. The unemployment rate was 5.8 per cent in August 2022. Many Indonesians work in the informal sector, including small and medium enterprises, as contractors or in the gig economy. Work is easily obtained in Jakarta and other big cities. Personal connections, through family, previous work or within one’s own ethnic group, are helpful but not essential for finding informal work.[1] The Constitution (Indonesia) recognises social protection as a basic human right and obliges the state to provide social protection to all citizens.[2] Indonesia has a public health insurance scheme that is accessed through a monthly premium for those on an income otherwise the government pays premiums for those who are unemployed or poor. Indonesians with an income have access to a public insurance scheme that offers accident, life, and a pension.[3] Those without an income or who are poor may be eligible to access welfare services such as cash payments, food cards or subsidies, education, and healthcare.[4] Gaps in the social protection system mainly affect elderly women and those who work in the informal sector.[5]
[1] DFAT, ‘DFAT Country Information Report Indonesia’, 24 July 2023.
[2] 'Social Protection System Review of Indonesia', Organisation for Economic Co-operation and Development (OECD), 11 April 2019.
[3] 'BTI 2022 Country Report - Indonesia', Bertelsmann Stiftung, 22 February 2022.
[4] DFAT, 'DFAT Country Information Report - Indonesia ', 24 July 2023; and 'Social Protection System Review of Indonesia', OECD, 11 April 2019.
[5] 'Social Protection System Review of Indonesia', OECD, 11 April 2019; and ‘How social protection can create a more equal Indonesia’, Asia & the Pacific Policy Society, 13 September 2022.
Based on the country information, I accept that if the applicant returns to Indonesia, he may face difficulty in initially finding employment and that any such employment is likely to be lower paid than his work in Australia. I also accept that he will owe not insubstantial sums of money to Bank A, his relatives, and his in-laws. As his father and daughter still live in his family home in [Town 1], and this is where the applicant previously lived when he was Indonesia, he is highly likely to return to his family home, if he returns to Indonesia. The applicant worked in trading [in] Indonesia and has done farm work, [other specified work] in Australia. At the hearing he said that his family in Indonesia had previously supported themselves by growing food on their land. He is in his [age]. He speaks, reads, and writes Indonesian, together with a bit of English. He has shown himself to be resilient and resourceful by adapting to life in Australia. While I accept that he may face some difficulty in initially obtaining a job, and the job may be comparatively low paid by Australian standards, I am not satisfied on the evidence that the situation is such that his prospects are so limited that there is a real chance that he would be denied the capacity to earn a livelihood of any kind or experience hardship to the extent that would threaten his capacity to subsist or otherwise lead to serious harm. Additionally, the country information indicates the employment situation, and economic conditions, in Indonesia impact the population and the country generally. As such, I do not accept that any difficulties or hardship the applicant may face in obtaining employment, with the pay he receives for such employment, or any difficulties he encounters in servicing his current loans, would amount to persecution for any s 5J reason under the Act.

Considering the findings set out above and 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, he faces a real chance of persecution.
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 country information indicates that the employment situation and economic conditions in Indonesia impact the country in general, rather than from an act or omission intended to cause pain or suffering that could reasonably be regarded as cruel or inhuman, severe pain or suffering or extreme humiliation as required by the relevant definitions of significant harm. I find on the evidence that any difficulties or hardship the applicant may experience in obtaining employment, the level of pay received, his having to service his current loans and from his general financial situation in Indonesia, does not amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment within the meaning of the Act. For the same reasons I find that there is not a real risk of the applicant being arbitrarily deprived of his life or the death penalty being carried out.
For the reasons set out above I have found that the applicant does not otherwise face a real chance of harm in relation to his claims or profile. As ‘real risk’ and ‘real chance’ involve the application of the same standard,[6] he also does not face a real risk of any harm in Indonesia. I am not satisfied that the applicant faces a real risk of significant harm in Indonesia.
[6] MIAC v SZQRB (2013) 210 FCR 505.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark Oakman
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2679

9 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction