1807519 (Refugee)

1807519 (Refugee) [2024] AATA 2362 (13 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807519
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Jason Cabarrús
DATE:13 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 March 2024 at 2:50pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – Chinese ethnicity – racial discrimination – economic conditions – participation in two protests – detained and beaten by police – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 22 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, a citizen of Indonesia, applied for the visa on 25 October 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee or complementary protection criteria in the Act.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether they meet the complementary protection criterion. These criteria broadly require that a person face a real chance of serious harm for specified reasons, or a real risk of significant harm, in their home country. The relevant law is set out in the attachment at the end of this decision.
For the following reasons, I have concluded that the decision under review should be affirmed.
BACKGROUND
The applicant was born in Medan, North Sumatra, Indonesia in [year]. He lived there with his parents and [number] sisters until he came to Australia in February 2015. He applied for the protection visa in October 2017. Along with the visa application form, he gave the Department a copy of his passport.
The delegate refused to grant the visa in February 2018 and the applicant applied to the Tribunal for review of that decision. He gave the Tribunal a copy of the delegate’s decision.
The applicant appeared before the Tribunal on 14 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted primarily in English, with occasional assistance from an interpreter in the Indonesian language. At the start of the hearing he provided some additional documents relating to his business and taxation affairs in Australia.
At the end of the hearing, the applicant asked for 2 weeks to provide further material in support of his claims (i.e. by 28 February 2024). As nothing had yet been received, on 5 March 2024, a Tribunal Officer telephoned the applicant to follow up. The applicant told the officer that he would submit the further documents by the end of that same day. That afternoon, the applicant emailed the Tribunal, advising that he had been unable to get the witness statement he was intending to provide as a supporting document, as his family had bene unable to find the person, and that he needed 7 more days to submit the document (i.e. by 12 March 2024).
The Tribunal wrote to the applicant on 6 March 2024 advising that it was not minded to allow more time based on the limited information provided, and asked the applicant to provide more information, in particular, the name of the person from whom the statement was sought, their relationship to the applicant, the nature of the evidence that the applicant thinks they will be able to provide in their statement, and details of efforts made to contact them and obtain the statement so far, including copies of any supporting evidence. The applicant did not respond to this request, and as the 7 additional days requested by the applicant to obtain the further evidence has now passed and the applicant has not requested any further time, I have decided to proceed to a decision on the basis of the available material.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Broadly, the applicant claimed that he faced harm in Indonesia for three main reasons. The first related to his ethnicity as a Chinese Indonesian. The second related to economic circumstances in Indonesia. The third, which were his main claims, related to participating in two protests in Indonesia in [2014] and [2015].
Chinese Indonesian claims
The applicant claimed that he faced discrimination as a Chinese Indonesian. He told me that although Indonesia is a multicultural nation, he was part of a minority, as a Chinese Indonesian. He said that they are not treated well, for example there was a massacre back in 1965, and he himself saw a riot back in 1998, and that too much pressure was placed on Chinese Indonesians.
I asked him if he had faced any discrimination or harm in the past. He told me that when he went to work in areas with less diverse population he wasn’t treated very well, and that discrimination was worse in such areas. There was one occasion where he went to collect money from a client and the client’s five year old son pointed a finger at the applicant and said “China, China”. He also told me that when he was at school, others told him he didn’t belong and asked him to give them money, because they assumed that he was rich, because that is the stereotype about Chinese Indonesians. I asked him if there were any more recent incidents, and he told me that he was always being asked from money and verbally abused and told to go back to his country, which didn’t make sense because Indonesia was his country.
I put to him that while the country information I had read indicated that Chinese Indonesians face societal prejudice and discrimination in the form of negative stereotypes, consistent with what the applicant had told me, it also indicated that: Chinese Indonesians do not face official discrimination; while violence occurred in the past it is not an everyday experience; previous official policies that discriminated against Chinese Indonesians were removed since 1998, following the end of the Suharto regime; and there is broad official and social acceptance of Chinese culture, for example Chinese New Year is a national public holiday, Chinese language newspapers are published, Confucianism is officially recognised as a religion, and there are no barriers to Chinese cultural celebrations or education.[1]
[1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – Indonesia’, 24 July 2023 at paras 3.6-3.12.
In response, the applicant said that even though the law has been changed for the better, so things are better by the book, practically, there is still discrimination by civil servants and by the community and it tends to be harder for Chinese Indonesians.
I put to the applicant that I might find that the level of discrimination he faced as a Chinese Indonesian might not amount to persecution or significant harm. He did not say anything further addressing this.
In light of the country information and what the applicant has told me, I accept that, if he returns to Indonesia in the reasonably foreseeable future, he will face discrimination in the form of stereotyping, name-calling, and unhelpful attitudes from civil servants which may cause inconvenience, on the basis of his Chinese Indonesian ethnicity. However I do not accept that he will be denied access to any services or face any other harm on this basis. I find that the stereotyping, name-calling, and unhelpful attitudes and associated inconvenience that the applicant will face does not constitute serious harm, and therefore it does not meet the requirements of s 5J(4)(b) for a well-founded fear of persecution. I also find that this kind of discrimination does not fall within any of the categories of significant harm referred to in s 36(2A).
Economic claims
The applicant claimed that the economy was not very good in Indonesia, and he could barely make enough money to support his family. In contrast, in Australia he started from scratch and made his own way as a sole trader and believes he could have more meaning here. I asked him if he could explain what harm he thought he would experience on this basis. He said he’d been living and working lawfully in Australia and didn’t know the situation in Indonesia, and was concerned that he might not be able to adapt to the conditions there due to the amount of time he’d spent here, and might not be able to support himself and his family (his parents and sisters). I asked him whether he feared serious harm or persecution on this basis, and he replied that there is also an upcoming general election for the president, and he is afraid that if the election doesn’t go well, there’s a chance that riots might happen and he might be affected.
The applicant did not provide any independent information in support of his speculative assertion that riots might occur following a pending election, and on the material available to me I do not accept that there is a real chance of this occurring.
I put to the applicant that I might find that the kinds of difficulties he had referred to, relating to poorer economic conditions and difficulties in earning income, do not constitute serious or significant harm, and may lack the element of targeting required to meet the refugee definition. He replied that he had been living in Australia for nine years, and since he got his legal stay, he had been living lawfully according to Australian law, and it would mean the world to him if he could be allowed to stay, because he really had no idea what would happen to him if he left Australia, and he had plans and vision of what he wanted to achieve here, but didn’t have any of that if he went back to Indonesia.
I am prepared to accept the applicant’s assertion that he will have some difficulty adjusting to living conditions in Indonesia due to the time he has spent here, and that he will face poorer economic conditions making it harder to support his family. However, he did not provide any reasons why the economic difficulties he would face in Indonesia would be targeted at him in any way, and accordingly I find that they do not involve systematic and discriminatory conduct, and therefore do not meet the requirements of s 5J(4)(c) for a well-founded fear of persecution. I also find that these kinds of economic difficulties do not fall within any of the categories of significant harm referred to in s 36(2A).
I have also considered whether this claim, taken cumulatively with his claim about being a Chinese Indonesian, could give rise to persecution. However, the country information referred to above does not support that the discrimination against Chinese Indonesians gives rise to any economic harm that could be characterised as serious or significant harm. Accordingly, taking into account that country information, I find that there is no real chance of the applicant facing persecution or significant harm on the basis of his economic claims, now or in the reasonably foreseeable future.
Protest-related claims
In summary, the applicant claimed that:
a.in around the middle of 2014, he heard from his friend [Mr A] about a protest that a friend of [Mr A]’s named [Mr B] was organising;
b.the protest concerned the mayor of the applicant’s hometown Medan, named Dzulmi Eldin, who was elected in around June 2014, and was accused of being corrupt;
c.the applicant attended the protest, which took place in [2014] in [location], and was attended by around [number] people, including [Mr A], [Mr B], and the applicant;
d.around 15 to 20 police and riot squad officers came, and most of the protesters fled, but the applicant, [Mr B], and two other protesters were surrounded by the police;
e.the police told them to surrender, then told them they were being arrested for public nuisance and disturbing the public;
f.they were handcuffed and taken to prison in two separate police cars, where they were taken to separate cells and he was interrogated and beaten;
g.the applicant remained in the cell for five days and was beaten each day, until his family bailed him out by paying money;
h.after he was released he returned to working and continuing his daily activities;
i.he attended another protest in [2015], also organised by [Mr B];
j.this protest was similar to the [2014] one, and again around 15 to 20 police came, but on this occasion the applicant ran away;
k.he then laid low at home for two or three weeks until his flight to Australia.
The applicant said that as a result of these events, he feared that they could threaten him or his family if he goes back, with things like being beaten or kidnapped. When I asked him who would threaten him in this way, he said it could be the gang affiliated with the mayor. When I asked him the name of the gang, he said it’s not the gang, it’s the ex-mayor, he has money and influence in every sector, even in the police force and that although the protest he participated in was a small protest of around [number] people, they were treated badly because the mayor had people in the police force. He also told me that he was afraid he would be detained by police and thrown into jail in connection with these events, and that they might persecute him for having escaped from the second protest.
I discussed these claims with the applicant at the hearing and his responses gave rise to a number of concerns which I also discussed with him, as explained under the headings below.
Reasons for attending the first protest
The applicant told me he wanted to raise his voice to improve things in his town because things were bad and he didn’t want to see them getting worse. He told me that he attended the protest because he believed the election system was unfair and couldn’t accept that they had elected a mayor who had a bad record of corruption. When I asked the applicant to explain what was unfair about the system, he said that they didn’t do proper background checks, which they should have, to ensure that a clean candidate was chosen, and the system is unfair if people like him could be elected. He also told me that Dzulmi Eldin was later arrested in 2019 for accepting bribes from civil servants.
He told me that his friend told him about the first protest and that the election and its outcome were not fair because they had been struggling with their economy and couldn’t get proper facilities or clean water, so they tried to raise their voices to get somebody proper to run the city as mayor. He also told me that this was the first time he had ever been to a demonstration and he had not been involved in any political activity before that. He said that since the election, they felt the impact and it didn’t look good for them. I asked the applicant to explain what impacts he felt. He said that there were lots of projects being carried on, like digging in the streets for new drainage, water pipes or electrical cables, and that Mr Eldin used taxpayer money in the project so he could corrupt it, and that after the digging, the roads weren’t even fixed properly, so they were getting sick of it and wanted to make a change.
I asked how the applicant knew that Mr Eldin was taking money in a corrupt way, and the applicant replied that the previous mayors running the town always had a bad record of corruption, and Mr Eldin’s arrest in 2019 proved it. I asked the applicant what made him want to protest Mr Eldin’s election if all the previous mayors had also had a record with corruption. He replied that he was getting tired of bad infrastructure so he decided to make a change. I asked him how he thought going to the protest would lead to change. He said he wasn’t sure how much change they could make but he thought it was worth a shot because if no one acted things would stay the same.
I put to the applicant that I was concerned that he applicant had not provided a reasonable explanation for why he decided to go to the protest, in circumstances where he had never before been involved in any political activities or demonstrations, and he was not able to clearly explain the unfairness that he was concerned about in the electoral system, or how he knew of Mr Eldin’s corruption back in 2014, or how Mr Eldin’s election had impacted on him (other than general claims about facilities and roadworks), or how he thought protesting would lead to a change. In response to this concern, and also to the other concerns I put to him (as discussed below), the applicant replied that the events were a long time ago, around 9 or 10 years. I have considered this response but it does not address the concerns I put to the applicant, which were primarily about his reasons for wanting to attend the protest. If this was something he was genuinely interested in, it is reasonable to expect him to remember and be able to provide a reasonable explanation for why he was interested in it, even 9 or 10 years later.
Actions taken at the first protest
The applicant told me that he gathered in the group of [number] people outside the mayor’s office, trying to get attention from officials inside the office, making noises and tapping on the front gate; and that [Mr B] used a megaphone to call out the government officials to come out and speak with them. I asked if they did anything else, and the applicant said no, they were just standing there trying to get attention, they didn’t do any vandalism, burning tyres or spray-painting.
I asked the applicant what he was hoping to achieve through these actions, and he said that he was hoping that in the future they could have a more appropriate leader to run the city. I asked him how he thought these actions would lead to that, and he said that they were just trying to get attention for their actions, to draw a bigger mass and make more impact. I asked what he was doing to try to draw a bigger mass, and he replied that it seemed the plan didn’t work very well because the police and riot squad came by and tried to detain them.
I put to the applicant that I was concerned that he had not provided a reasonable explanation for the actions that he claimed he was involved with at the first protest, as he was unable to clearly explain how making noise outside the mayor’s office in a small group and trying to get the attention of officials within would draw a bigger mass and make an impact. As noted above, the applicant’s response to this concern and the other concerns I put to him was that the events were a long time ago, around 9 or 10 years. This response does not address the concern, which was again about his reasons for his claimed actions.
Response to being detained and beaten
The applicant told me that he was taken to [named] prison and beaten by police for five days in a row. In his visa application, he described this as being tortured terribly in the detention centre. He told me that he was also interrogated there. When I asked him what he meant by interrogated, he told me that they asked him about the purpose of the protest and who organised it. He said that he told them that the purpose was to make a change for the community, but he didn’t tell them who organised it, because if he snitched then that would endanger [Mr B], who was also arrested, and the applicant doesn’t snitch.

I asked the applicant why the police would beat him, and he replied that it was because he didn’t tell them who organised the protest, he told them he didn’t know. I asked him why they would beat him if he had told them that, and he said he had no clue either, firstly it could be because they were causing a public disturbance, another reason could be that he is a minority. I asked him what happened during the five days he was in the cell, and he said he was mostly detained and beaten periodically, different officers came around midday on each day, and they mostly hit him with their bare hands, but sometimes used a thick book so that he would feel the impact but it would leave no marks or bruises. He was allowed to make a call and he called his family to see if they could bail him out, and they had to get the funds to do so, which cost around AUD $5000. After they paid this he was released.
I asked the applicant if he reported this incident to anybody and he said he did not. I asked why he did not approach relevant authorities or agencies in Indonesia to investigate this very serious incident involving excessive use of force by the police.[2] He said that his family doesn’t know much about the laws and regulations, and as long as they could bail him out they called it quits. I asked him how he felt about being detained and beaten, and he replied that it is unfair but he accepted his fate, because that’s how Chinese Indonesians are treated as a minority, they’re used to it, nothing really surprised him about being detained or beaten, he just thinks that’s as it is.
[2] E.g. Komnas HAM is the Indonesian National Commission on Human Rights and receives complaints about bodies including the police: see Tempo.co, ‘Komnas HAM Receives 5,301 Human Rights Complaints Throughout 2023’, 26 January 2024 (accessible at >
I put to the applicant that I was finding it hard to reconcile his earlier claims to me about wanting to protest against the unfairness of corruption in the electoral system, with his claim to me now that he had no desire to protest against the unfairness of being physically beaten by the police. He replied that the discrimination has been long running and they’re aware they can’t do anything about it, getting a proper electoral system is hard enough, but it would be even harder to change this discrimination against minorities.
I put to the applicant that I was concerned that he had not provided a reasonable explanation for not complaining about his mistreatment at the hands of police, particularly in circumstances where he had never been involved in this kind of activity before, and he had claimed that he was willing to go and protest about an issue of corruption that hadn’t directly affected him in a material way, and yet was unwilling to take any steps in response to an incident that had very seriously and directly affected him. As noted above, the applicant’s response to this concern and the other concerns I put to him was that the events were a long time ago, around 9 or 10 years. This response does not address the concern, which was again about his reasons for his claimed actions. I also do not accept that the applicant’s explanations relating to his status as a minority ethnic Chinese Indonesian reasonably explain this, because I do not accept that there is a problem of violence against Chinese Indonesians, in light of the country information referred to above.
Reasons for attending the second protest
The applicant told me that [Mr B] then contacted him a week or so before the next protest in [the next year] and said that he wanted to try to do the same protest again and see if they could make any difference on the second attempt. The applicant was a bit unsure at first but then he thought he was already involved so let’s not stop halfway, so he decided to participate again. His friend [Mr A] was not going to this second protest because he was afraid of his safety.
I asked the applicant whether he was afraid of his own safety, especially after what he claimed had happened to him at the first protest. He told me that he was, but at that stage he was already planning to move overseas and thought he could go ahead with that plan in case worse things happened. I asked him if [Mr B] had a plan for the second protest, given what had happened at the first one. The applicant said he didn’t mention one, he just asked the applicant to participate and the applicant just went with it. I asked the applicant why he thought that going and doing the same thing might lead to a different outcome, and he said he was basically just trying to see if the second protest would make a difference.
He also told me that he had heard about the first protest in around [month in] 2014. Noting that the first protest took place in [specified month in] 2014, I asked the applicant why it would take five months to organise the protest, and yet only [number] people showed up at the protest. He replied that it could be due to poor planning and lack of interest, and that the schedule kept getting delayed. I asked him if he could explain why he would go to the second protest, if the first one was so poorly planned, and had so few attendees and moreover the applicant was arrested and beaten as a result. He replied that he wanted to make a difference.
I put to the applicant that I was concerned he had not reasonably explained why he would attend the second protest when the first protest had been so poorly organised, hadn’t achieved any positive outcome, and had had such serious negative consequences for him. As noted above, the applicant’s response to this concern and the other concerns I put to him was that the events were a long time ago, around 9 or 10 years. This response does not address the concern, which was again about his reasons for his claimed actions.
Leaving work and decision to come to Australia
The applicant told me that after graduating from high school he mainly worked for a couple of companies supplying [specified goods], and also some other small businesses, mostly doing sales and activities out of an office, meeting with clients to offer products to them or collect money from them. He told me that he ceased working for the second [company] around [2014] due to the protests, so that if he had to leave immediately in the worst case scenario, he wasn’t working there anymore, and that after that time he just did smaller part time jobs for friends. He later elaborated that the reason he stopped working at the [company] was that if he was detained or ran away, he could leave at short notice; and that the company he worked for held his graduation certificate, so he needed to give proper notice to get that back. He also told me that he started planning on coming to Australia and already started preparing to get a visa to Australia when he started hearing about the protest. I asked him why he was concerned that he would be detained, or why he thought that something bad was going to happen, given that he had never been to a protest before. He replied that he was just preparing for the worst possibilities.
I put to the applicant that I was concerned that he had not reasonably explained why he would quit his job and make plans to leave the country , simply because he had heard a protest was going to happen and was planning to attend it, in circumstances where he had never attended a protest before and could not explain why he thought that anything bad would happen to him if he did attend a protest. As noted above, the applicant’s response to this concern and the other concerns I put to him was that the events were a long time ago, around 9 or 10 years. This response does not address the concern, which was again about his reasons for his claimed actions.
Credibility of the applicant’s evidence and findings on protest-related claims
As noted above, I put to the applicant several concerns about the reasonableness of the explanations he had provided. I also put to him that I might not accept him to be a witness of truth due to those concerns, and asked if he had anything else that he wanted to tell me in response to the concerns. He said he tried to recall all the events that happened during that time, but it had been a long time since then, 9 to 10 years now.
While I accept that the passage of time may affect a person’s ability to recall details about precisely what happened and when it happened, my concerns with the applicant’s evidence were not concerned with these kinds of details, but rather with the reasons why he behaved the way he claimed he did. I do not accept that the passage of time or issues with memory/recall provide a reasonable explanation that addresses the concerns I raised with him. As the applicant has not provided a reasonable explanation in relation to several aspects of these claimed events, I find that his evidence about these key claims has not been truthful and he is not a witness of truth.
I therefore do not accept that the applicant attended the protests in [2014] and [2015] as claimed. Nor do I accept that he was ever arrested, detained or beaten by police in Indonesia, or ever had any other encounters with such authorities in Indonesia. I therefore do not accept that he was of any interest to the authorities or anybody else in Indonesia at the time he left Indonesia.
The applicant told me that he is getting older now and is sceptical that protesting could bring about change, because it’s really hard to make a difference. I therefore find that the applicant would not engage in any political or protest activity if he returns to Indonesia in the reasonably foreseeable future, because he has no interest in doing so.
Accordingly I find that there is no real chance that the applicant faces persecution, significant harm, any kind of harm in Indonesia arising from his protest-related claims, now or in the reasonably foreseeable future.
Conclusions
I have found that the applicant does not face a real chance of persecution or a real risk of significant harm on the basis of his claims relating to his Chinese ethnicity or economic circumstances (or those claims taken cumulatively), or on the basis of his protest-related claims (including to the extent that aspects of those claims also referred to his Chinese ethnicity).
I therefore find that there is no real chance of the applicant facing persecution or significant harm in Indonesia, now or in the reasonably foreseeable future. Accordingly, I am not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (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.
Jason Cabarrús
Member

ATTACHMENT
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 below.
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 below.
Extracts from the 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 2362

13 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction