1805419 (Refugee)

1805419 (Refugee) [2024] AATA 441 (22 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1805419

COUNTRY OF REFERENCE: Indonesia
MEMBER:Jessica McLeod
DATE:22 January 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 January 2024 at 11.43am

CATCHWORDS
REFUGEE – protection visa – Indonesia – no Convention nexus – threats from loan sharks – loan agreements – economic conditions – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
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 Home Affairs on 20 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 25 July 2017, claiming that he faced, and would also face on return, problems due to the high cost of living and difficulties finding a suitable job. The delegate refused to grant the visa on the basis that he was not satisfied the applicant would suffer a real chance or real risk of any harm amounting to serious or significant harm, nor was he satisfied that any harm faced would be for a s 5J(1)(a) reason.
The applicant lodged an application for a review of that decision with the Tribunal on 1 March 2018.
On 17 and 20 June 2023 the applicant provided additional information in support of his protection claims, and he appeared before the Tribunal to give evidence and present arguments in a hearing on 20 November 2023. 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). 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.
The issue to be determined in this case, therefore, is whether the applicant is a refugee, meaning he has a well-founded fear of being persecuted in Indonesia for one or more of the five reasons set out in s 5J and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Indonesia, there is a real risk he will suffer significant harm.
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.
CLAIMS AND EVIDENCE
Information before the delegate
In his protection visa application lodged in 2017, the applicant claimed to be a citizen of Indonesia, from Madiun City, in East Java. He referred to the worsening Indonesian economy and cost of living, and the issue of employability, noting even university graduates (as he is) were unemployed. He claimed his monthly commitments were costing more than his salary and that he could not find a job that fits his skills and qualifications, or with enough pay to support his life. He indicated that he had not experienced harm in Indonesia, nor did he think he would be harmed or mistreated on return.
Provided with the application was a copy of the applicant’s Indonesian passport. Also on file, and seemingly provided at the same time, was an [Agency 1] Business Travel Card.
Information provided to the Tribunal
In his pre-hearing information form provided to the Tribunal on 17 June 2023 (with further detail submitted on 20 June 2023), the applicant raised additional claims. He claimed that he had taken out a loan with a loan shark in Indonesia when he was unemployed. He originally owed AUD [amount] but with interest, he now owes AUD [amount]. He escaped to Australia because of this debt in Indonesia. His family is under threat from debt collectors in Indonesia, and now he works here (in Australia) to pay that debt. However, he now also has debts in Australia too.
Other documentary evidence on file (which was also before the delegate) includes copies of the applicant’s Indonesian passport and an [Agency 1] Business Travel Card.
At the Tribunal hearing on 20 November 2023, the applicant reiterated all the above claims and provided further detail about his circumstances, as summarised below.
He has lived most of his life, apart from his university years, in a small town in East Java, about [distance] outside Madiun city.
He completed school, then immediately went on to university where he completed a degree over four years at [a named] university, living in a lodging [house], supported by his father and one of his [siblings].
He has never worked in Indonesia. He applied for many jobs but his university record wasn’t good enough to win a position, and some jobs had specific height or other requirements, or involved testing. He tried to get jobs in [specified businesses] but he was rejected; even [one job] required a certain university test score.
After finishing his studies, he moved back to the family home and assisted his father. His father had previously run a small business buying and selling [products 1], but two years before the applicant came to Australia, he was cheated by a business partner who stole a number of his [products 1], causing his father to go bankrupt. The family own their home and a nearby [farm] plot and after his father went bankrupt from the [product 1] business, they just earned money off their [farm] plot. They sold produce from it but it was seasonal and they weren’t able to make much of a living off the farm.
In 2016, his father borrowed [amount] rupiah (IDR), or about AUD [amount] from ‘N’, a better-off person in the neighbourhood. The terms of the loan included that the applicant’s family had to repay a minimum of IDR [amount] monthly. His father died of heart problems two years ago and in total, with interest, the amount owing to N is now three times what his father borrowed.
The applicant has been paying off the loan in Australia, but there is still a lot owing and he has had to pay his father’s hospital bills from before he died, and for his own accommodation, living expenses and car loan in Australia. He is also financially supporting his mother and helps support his nephews who, together with their parents, live with his mother in the family home. He took out a loan for AUD [amount] with the [named] Bank here, using AUD [amount] towards repayment of the loan in Indonesia. He has been sending the money to his mother, and N’s people have been visiting the house to collect it from her.
Before coming to Australia, the applicant had travelled outside of Indonesia on two other trips. He travelled to [Country 1] for almost five weeks in August-September 2016, and to [Country 1] and [Country 2] for a short trip of a less than a week in October 2016. Both trips were holidays and to visit a friend. His father paid for these trips.
As for his [Agency 1] Business Travel Card, the applicant described it as a genuine document but said he had never travelled on it. He said his father had obtained for him in 2016, to support his initial visa application for Australia. To obtain it, he provided his degree and his identity card and his father’s work history and his father paid AUD [amount] to his friend.
Following the hearing, on 1 December 2023, the applicant also provided some documentary evidence to support his claim, including the purported loan agreement between N and his father (for which he later also provided a translation) and a loan offer agreement for AUD [amount] from an Australian bank, dated August 2022.
REASONING AND FINDINGS
Identity/Background
I have no concerns with the applicant’s Indonesian passport (the original of which I sighted at the Tribunal hearing) and I accept his identity is as claimed. I accept he is a citizen of Indonesia, and that for the purpose of this review, Indonesia is his receiving country. I accept too, that he comes from East Java and if he was to be returned to Indonesia, I find he would return to the area near Madiun city, where his family home is, and where his mother and some other family still reside.
I accept that despite being university educated, the applicant struggled to find work in Indonesia with a wage or salary he considers acceptable. I accept too, that the applicant felt some pressure to find work that paid higher than a minimum wage. I also accept, sadly, that the applicant’s father became sick and passed away around two years ago and that the applicant is financially supporting his mother and contributing money to support his nephews and that he also had to pay his father’s hospital bills. I also accept the applicant’s account that he and his father were planning his travel to Australia in 2016 and obtained the [Agency 1] Business Travel Card to aid his initial visa application.
Claims relating to the loan
I have some concerns with the credibility of the applicant’s evidence regarding the claimed loan and problem with N.
Father’s financial situation/[Agency 1] card
Firstly, the applicant has only provided vague details around his father’s bankruptcy. And while the applicant claims this occurred two years before his departure (so, around 2015) he also stated it was his father who paid for his holidays, to [Country 1] (the first one being almost five weeks) in August-September 2016, and to [Country 1]/[Country 2] in October 2016. He also said his father paid AUD [amount] for the [Agency 1] card in 2016. Given this, and that the applicant also claimed that he never worked in Indonesia, even after his father went bankrupt and lost the [product 1] business, and that their [farm] plot did not give them much income at all, I have difficulty accepting that the applicant’s father could have been bankrupt and still covered these non-essential expenses. As for the [Agency 1] card, while the applicant claims it is genuine, given his evidence that his father paid a friend for it, and it was his father’s work history (and not the applicant’s) submitted in the process to obtain it, I consider that either it is a non-genuine document, or that it was fraudulently obtained.
Details and evidence of the loan and repayments
The applicant’s evidence around the loan agreement was also vague and I consider that he was obfuscating on certain points. For example, when asked about the timing of the initial loan, the applicant said he didn’t remember because his father would never talk to him about the money lenders or about borrowing money. When asked whether he had any evidence of the loan or monies still owing, the applicant responded he did not know about any evidence, as his father never talked about the loan details so he did not know the exact details. I put to him that given he claims to have taken over responsibility for the loan and to have had a direct conversation with N to negotiate the expectations for payment going forward, I would expect him to have some understanding of the terms and conditions and to be able to provide more detail. He responded that he only negotiated the loan by phone and promised to repay AUD [amount] a month. He said other than that he doesn’t have much detail.
I raised with the applicant my concerns about there being no evidence of the loan agreement, nor of any repayment amounts being transferred to anyone, not even the AUD [amount] he claims he repaid using the bank loan from Australia. The applicant responded that his mother might have some evidence that he could provide. I noted it was a concern that he had no evidence himself, particularly given he claimed that he had negotiated with N directly. Since the hearing, the applicant has provided a copy of what he claims is the written loan agreement between his father and N dated December 2016, and also a written offer from an Australian bank in August 2022 offering to lend him AUD [amount].
However, I have concerns over the authenticity of the claimed loan agreement, noting that the applicant initially claimed there was no such written agreement and only later indicated his mother might have some evidence of it, when I raised the lack of evidence as a concern. There is no way of knowing either, on the face of this document, whether it is genuine, or whether it might have been created and produced for the purpose of satisfying the concerns raised. Even if I were to accept it as genuine, the applicant has provided no evidence of making any money transfer repayments back to Indonesia, nor any evidence to show that monies are still owing. For this reason, I place little weight on both the purported loan agreement and the Australian bank loan offer.
I am also unpersuaded by the applicant’s explanation about his method of repayment. He claims he sends money to his mother, and N’s people then collect it from her at home. When I asked him why he does it this way, instead, for example, of paying it directly to N, he said simply that he prefers to do it this way. I noted it seemed implausible to do it this way when another way could have prevented his mother from being subjected to the repeated land seizure threats that were made when N’s people visited for the money collection. The applicant responded that he trusts his mother more, to ensure it is paid, but said maybe it has been one of his mistakes. I have considered the applicant’s responses, but I nonetheless find it difficult to accept that the physical collection of money from the applicant’s mother reassures him more than some other method (e.g. electronic) which could track transactions and enable him to prove a payment was made. I note there is no suggestion, either, that N has requested the money be provided in cash form.
I have concerns too, about the applicant’s claims as to the loan amount, repayments already made and the amount still owing. He claims his father borrowed IDR [amount] (around AUD [amount]) in 2016, and that they had only paid off a quarter by the time he discussed the loan with N in 2021. However, he confirmed that the family did repay some of the money before he came to Australia in 2017, and that he was working and making repayments in Australia (although these were made less regularly, and were less than the AUD [amount] a month the family were required to pay, and which he promised to repay from 2021). He said that since 2021, he has been paying off AUD [amount] per month, amounting to around AUD [amount] over the last two years. He also said he paid AUD [amount] off from the Australian bank loan (which, according to the documentation, he entered into in 2022), meaning he has paid off around AUD [amount] over the past couple of years. One of the family’s [products 1] (which was listed as a form of guarantee in the loan agreement) has now also been seized. Yet, he claims he now owes AUD [amount] and that even the farmland, if seized, would still only mean that half the loan had been repaid. I am mindful that the agreed interest rate was very high and that there was purportedly provision for additional fines for late or missed payments stipulated in the agreement, but I nonetheless have concerns with the figures claimed. I also consider it implausible that N has not acted to seize the other guaranteed items in these circumstances, particularly if he has been threatening to do so.
Threats and intention to harm
There is little evidence that N or his people have any intention of harming the applicant or his family. The applicant confirmed at the hearing that although N’s people have repeatedly threatened to seize their farmland and [products 1] if the loan is not repaid, and they have taken one of the two [products 1] the family owned, they have not taken steps to seize the other [product 1] or the land and they have not threatened the family in any other way. The applicant said this is because, in 2021, he spoke with N directly and managed to convince him that he could repay him in stages, paying AUD [amount] monthly (and more whenever he is able to). He has been able to meet the repayments in Australia, but if he returns to Indonesia, he will not be able to. They will then seize the family’s farmland (which will only cover half the loan) and they will lose their livelihood, because the farm is their main income stream, apart from the money that the applicant is able to send from Australia.
I put to the applicant that it seemed as though he was concerned about returning to Indonesia for fear of struggling to meet the repayments, losing the farmland and struggling with the cost of living and supporting his family, but it didn’t seem as though he was fearing being harmed by anyone for any reason. He responded that up until now, he has been making the repayments so he hasn’t faced a big threat, but if he has difficulties repaying the loan, he cannot foresee what N would do. I noted the threats have related to seizing things and not harming them. I noted the long history with N (with the loan dating back to 2016) and despite defaulting on the loan, all that had happened so far was that one [product 1] had been confiscated and it did not seem that N had any intention of harming him or his family. The applicant responded that he is fearful about his future. He said his main concern is that his mother, who has medical conditions, will become sick, and his father has already died.
Overall findings on the claims relating to the loan

I have set out above my concerns as to the applicant’s evidence regarding the loan and the problems he claims his family have faced on account of that loan. As well as the points relayed above, I put the applicant on notice in the hearing that I was having doubts about whether he had in fact borrowed money, and about the circumstances surrounding the repayments and harm feared. In response, he undertook to provide evidence following the hearing (which he did in the form of the purported loan agreement and Australian loan offer, although for the reasons noted above, I have given them little weight).
Overall, the applicant’s evidence about N, the loan details and his repayments have been unpersuasive and the supporting evidence he has provided is of little probative value and does not satisfy me that his claims are credible, even when taken with his other evidence. Having considered the evidence overall, I do not accept the applicant was ever in debt to the amount claimed, nor do I accept he still owes any money now. I do not accept that N or anyone has any intention of seizing the farmland or any assets, nor of harming the applicant. I do not accept he faces a real chance of any harm from N or anyone on return on account of any loan.
I find that in relation to the claims about the loan, as the applicant does not face a real chance of any harm upon return to Indonesia now and in the reasonably foreseeable future, he does not meet s 5J(1)(b) and therefore does not have a well-founded fear of persecution under s 5J(1), is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
Even if I did accept his claims on this basis (which I do not), I put to the applicant that he does not appear to be fearing harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment. The applicant did not dispute this; he made no comment during the hearing, nor afterwards. I find that the applicant does not fear harm from N or anyone for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion. He does not therefore, meet the criteria in ss 5J(1)(a) and (b) of the Act. On this basis as well, he is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
As for the complementary protection criterion, noting that my above finding related to ‘any harm’ and that ‘real chance’ and ‘real risk’ involve the same standard,[1] I find there are not substantial grounds for believing that there is a real risk he would suffer significant harm inflicted by any act or omission by N or anyone else, as a necessary and foreseeable consequence of being removed to Indonesia. Accordingly, I find that the applicant does not meet s 36(2)(aa).
[1] MIAC v SZQRB (2013) 210 FCR 505.
Financial concerns
I do, however, accept that the applicant is concerned about his financial future, including finding a suitable job and providing for his family. The applicant showed some videos in the hearing which were then summarised and can be heard on the recording. The videos included media reports from Indonesian news outlets in 2023 (although one of them was reproduced or shared via Tik Tok) about unemployment in Indonesia and protest demonstrations against the unemployment rate and government inaction in that respect. They also depicted extremely long queues of people applying for a single job and reported that even university graduates were unable to find work of any kind. I accept these reports are credible.
As noted above, I raised with the applicant at the hearing that he does not appear to be fearing harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment. He made no comment in response. I find that any fear the applicant has and any problems he might experience in finding work and supporting himself and his family would not be for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion. He does not therefore, meet the criteria in s 5J(1)(a) of the Act.
I discussed with the applicant his difficulties finding work and I acknowledged that he may face difficulties in this respect on return. However, I put to him that the evidence did not suggest he would not be able to find any work at all (even if it is low paid work), nor did it appear as though anyone was denying him the opportunity to find work or to access basic services, or that anyone was motivated to stop him earning money or working. I also discussed the concept of serious harm with him and explained that, although examples of serious harm in the Act include significant economic hardship and denial of capacity to earn a livelihood or access basic services, the degree of seriousness would need to be such that it threatens his capacity to subsist. I put to him that it did not appear as though he would face harm amounting to serious harm, nor harm that would amount to significant harm for the purposes of complementary protection. In response to all of this, the applicant referred back to the videos showing that people are unable to get work.
Findings on financial concerns
Even noting that the protests in the videos show people deploring the government for their inaction, neither these videos, nor any other evidence before me indicate that the applicant’s challenges finding work (or work paying what he considers a suitable wage) would result from any systematic or discriminatory conduct, nor from any intentional act or omission by any person or body. I am not satisfied the applicant’s difficulties in finding work would be the result of any discriminatory attitudes or behaviours. I am not satisfied anyone has any motivation or intention to prevent him working or earning a living. And while I accept the applicant might face difficulties finding work on return (or finding work paying what he considers is a suitable wage), he has no apparent vulnerabilities. He is university educated and his time in Australia has given him additional and varied experience, as he has worked on farms and in various factories here. His family own their home and their farming plot (which they earn some money from) and a [product 1]. I am not satisfied the applicant will be unable to find work and earn a living to support his mother and help support his nephews.
I am not satisfied that any difficulties he might face in getting work, or any other difficulties he might face financially, would be the result of discriminatory conduct or intentional acts or omissions. Nor am I satisfied that such difficulties or challenges would themselves amount to, or otherwise lead to, a real chance of the applicant facing any harm that would amount to serious harm.
I find that the applicant does not have a well-founded fear of persecution on this basis. I find that the applicant does not have a well-founded fear of persecution under s 5J(1), is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
For the same reasons outlined above in relation to there being no real chance of serious harm arising from difficulties relating to work or his financial situation, I am also not satisfied there is a real risk of the applicant facing any harm that would amount to significant harm as it is defined in the Act.
Further, the risk of harm to the applicant arising out of the state of the Indonesian economy is one faced by the population of Indonesia generally, rather than by the applicant personally. In such circumstances, s 36(2B)(c) has the effect that there is taken not to be a real risk the applicant will suffer significant harm.
There are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Indonesia. Accordingly, I find that the applicant does not meet s 36(2)(aa).
Overall findings
I have sympathy for the applicant, noting that his father passed away since he has been in Australia and the applicant has financial responsibilities for his family members back home. However, I have considered his claims in their totality and I am not satisfied that he faces a real chance of persecution, nor a real risk of significant harm.
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 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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jessica McLeod
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 441

22 January 2024

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

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Procedural Fairness

Statutory Construction

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