1813018 (Refugee)

1813018 (Refugee) [2024] AATA 4447 (7 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1813018
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Mary-Ann Cooper
DATE:7 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 October 2024 at 2:22pm
CATCHWORDS
REFUGEE – Protection Visa – Indonesia – fear of financial problems – government officer threatened applicant with harm – financial hardship – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 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 2 May 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 8 February 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in s 36(2)(a) of the Act and was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(aa).
The applicant appeared before the Tribunal on 2 May 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 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 under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds.
The Tribunal has considered the written and oral evidence as well as independent resources concerning Indonesia. For the following reasons, the Tribunal has concluded that the matter should be affirmed.
Country of nationality
Section 5H(1) of the Act refers to a person being a refugee if he or she is outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
In relation to the complementary protection provisions, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has provided a copy his Indonesian passport issued on [date] 2015. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Indonesia and as such his protection claims will be assessed against Indonesia as the country of reference and ‘receiving country’ respectively.
Background
The applicant arrived in Australia on [date] February 2018 on a Visitor (Class FA) (Subclass 600) visa which ceased on [date] March 2018. On 8 February 2018 he applied for a Protection (Class XA) (Subclass 866) visa, which was refused by the Department for the reasons noted below.
APPLICANT’S CLAIMS AND EVIDENCE
Protection visa application
According to his protection visa application, the applicant was born in [Surabaya], Indonesia, on [date]. He stated that he was seeking protection in Australia so that he did do not have to return to Indonesia. He claims he was ‘threatened by the government officer as I knew he was involved in corruption’ and the officer forced him to leave Indonesia and has ‘got my family as his detention’. He maintained that if he returned to Indonesia he might ‘get hurted/killed as well as my family’. When asked if he had experienced harm in Indonesia he responded ‘No’. He did not respond to the question regarding whether he sought help. When asked whether he tried to move or relocate he answered ‘[t]he person who threatened me was the one who sent me to Australia, I have no choice as he has my family’. And in relation to whether he would be harmed if he returned he answered ‘Yes – I was warned by him if only he found I am back to my country or get in touch with my family I will get hurt and he gonna kill my family if I am trying to challenge him’. He did not consider that the authorities would protect him because ‘he is the politician whose corruption I have report him but there is no action taken as he is kinda an influenced person’. He claimed he could not relocate because ‘I were sent to Australia and all settled by the person who threatened me’.
Department’s decision
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record, a copy of which the applicant provided to the Tribunal with his application for review.
The delegate noted the applicant’s claims to fear harm from a government officer because the applicant knew he was corrupt and the officer had forced him to leave Indonesia and arranged for his travel to Australia. The delegate observed that the applicant had not claimed to fear harm because of his race, religion, nationality or membership of a particular social group or political group, and there was no information before her to suggest the applicant would be targeted on his return for any of these reasons. Accordingly, the delegate was not satisfied the applicant is a refugee as defined in s 5H of the Act. In assessing the complementary protection criteria the delegate noted that Indonesia had a functioning police force and judicial system and the applicant would be able to access legal protection from the authorities. It followed that the applicant was not a person to whom Australia owed complementary protection. Therefore, the protection visa application was refused.
Tribunal hearing
At the hearing the applicant claimed that for about 20–30 years he had a business in East Java selling and buying [Goods 1]. He said the business was not going well so he had to close it, he thought in around 2016, and he went to work on projects for a man called [Mr A]. He could not remember his full name or the name of his company. When asked for further detail about the projects, the applicant stated that it was procuring goods for government. Pressed for further detail, he said he procured things like [Goods 1] and anything they needed, it depended on demand. When asked why he ceased this work he responded that it was because he was told to increase prices but he declined. He claimed a man called [Mr B], the government representative to whom he delivered the goods, demanded the price increases to increase his profit margins. When the applicant refused he threatened him continuously through 2016–2017. When the Tribunal requested further detail concerning this man the applicant could only say he worked for the government in procurement in [a specified] sector. The applicant said he feared that if the prices were too high it would create problems for him because it might be regarded as corruption. The Tribunal asked whether he told his boss, [Mr A], and the applicant responded that he did but his boss just told him to be careful. The Tribunal queried [Mr B]’s power over the applicant and asked why he did not just stop dealing with him and supply to someone else. His responses in this regard were very vague. He said there was a contract between [Mr A]’s company and (presumably) the government. He said he had been threatened continuously by [Mr B] or his agents from 2016 to January 2018 and eventually left in January 2018. He later claimed he was first threatened around May–July 2017. When asked about the nature of the threats, he said he was told, mostly through telephone calls, ‘if you don’t want to do it watch out’ and ‘you carry on this way and you will be killed’.
The Tribunal asked if he had any documents supporting his claims to have worked for [Mr A] and/or [Mr B] or anything that demonstrated his association with them or of his work in this regard. He said he had thrown the documents away. When asked if he went to the authorities about the threats, he said that it was not worth it as the problem would just get bigger. The Tribunal referred to country information regarding Indonesia, noting that corruption existed but that ‘the police are generally effective at detecting and investigating crime’[1] and inquired whether he had reported the threats made against him to the police. The applicant said he had not because [Mr B] had family members in the police force.
[1] Australia. Department of Foreign Affairs and Trade. DFAT Country Information Report: Indonesia, 24 July 2023; paragraph 5.2.
When asked if [Mr B] ever acted on his threats he said that once he thought he was going to be hit. On further questioning he acknowledged he had not suffered any physical violence.
The Tribunal observed that it had been over 6 years since he had left Indonesia and asked why he thought [Mr B] would have any interest in him if he returned. He responded ‘maybe/maybe not’. The Tribunal asked if there had been any threats to his family, in particular since he had left Indonesia. He responded that in the past [Mr B] had telephoned his wife and asked questions like ‘where is your husband?’. He claimed the last time this happened was around the 11^th or 12^th month of 2017. The Tribunal observed that he came to Australia in 2018. He corrected his response saying that the call was around February/March 2018. He said his wife had told [Mr B] that he had left the company. The applicant said he had discarded his mobile phones, purchased new ones and the threats had stopped. He confirmed his family had no more problems with [Mr B] or his associates since then.
When asked why he was afraid to return to Indonesia he said it had been a long time and he did not want to go back now because he will have financial problems. The Tribunal asked if, aside from financial reasons, there were any other reasons he felt he could not return to Indonesia. He responded that money is a big problem. The Tribunal observed that if he went back to Indonesia, it appeared he had no reason to fear any harm from [Mr B] or others. Aside from financial difficulties, on the information before it, the Tribunal observed that it might conclude that he did not have a well-founded fear of persecution or that there were any substantial grounds for believing that there was a real risk he would suffer significant harm if he was returned to Indonesia. He requested he be allowed to remain in Australia. The Tribunal gave the applicant some further time to provide more information about his claims, however no further information was received.
Credibility assessment
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This, in turn, requires the Tribunal to assess whether the applicant’s claims are credible. In doing so, the Tribunal is conscious of the difficulties often faced by asylum seekers such as anxiety and nervousness and the length of time between the events they are required to describe and the hearing date. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[3]
[2] SZLVZ v MIAC [2008] FCA 735 [28].
[3] MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.
Nevertheless the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It is for the applicant to satisfy the Tribunal that all the statutory elements are established. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[4]
[4] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70).
Overall the Tribunal found the applicant’s evidence regarding [Mr A] and [Mr B] vague and unconvincing. It was not supported by any probative objective evidence, the applicant not even remembering his boss’s surname or the name of the company for which he worked. Nevertheless he was frank in acknowledging that currently his only fear is that he will suffer financial problems if he returns to Indonesia.
Giving the applicant the benefit of the doubt, the Tribunal finds that:
·     From 2016 to early 2018 the applicant worked as a contractor in Indonesia sourcing various goods for a government agency.
·     He was asked to inflate his prices by a government officer to whom he delivered the goods, however he refused because he was afraid of being accused of corruption.
·     Consequently the government officer threatened the applicant with harm in or around 2017.
·     The applicant did not suffer any harm in Indonesia.
·     The applicant decided to leave Indonesia.
·     In February/March 2018 the government officer called the applicant’s wife inquiring as to his whereabouts.
·     There has been no more contact or threats of harm to the applicant or his family since his arrival in Australia.
·     He does not fear harm from any person in Indonesia.
·     He does not wish to return to Indonesia because he fears he will suffer financial hardship.
Refugee assessment
Section 5H(1) of the Act provides that 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. As noted above, the applicant’s nationality is Indonesia and he is outside that country.
Section 5J of the Act provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (s 5J(1)(a))?
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted. ‘Persecution’ is not defined in the Act, however ss 5J(4)–(5) provide meaning. Specifically, a person will not meet the definition of a refugee unless the persecution involves serious harm to the person, it involves systematic and discriminatory conduct, and the essential and significant reason or reasons for the persecution is for reason of race, religion, nationality, membership of a particular social group or political opinion.
Government officer/corruption
In his protection visa application, the applicant claimed to fear harm from a government officer, Mr [Mr B], because he knew he ([Mr B]) was involved in corruption. He claimed that he or his family would be hurt or killed if he returned to Indonesia.
At the hearing he said he feared harm in Indonesia because [Mr B] told him to increase his prices but he did not want to do this and had refused. Because of this refusal, he and his family were threatened by [Mr B].
While the Tribunal generally accepts the applicant’s oral evidence in this regard, there is no claim or indication that the applicant has been, or that there is a real chance he would be, harmed because of his race, religion, nationality or political opinion, or because he is a member of a particular social group. Rather, the essential and significant reason for the harm that the applicant claims he will suffer is because he refused the request of a particular government representative ([Mr B]) to increase the price of the goods he delivered, not for one of the reasons listed in s 5J(1)(a) of the Act (s 5J(4)(a)).
Therefore, in relation to the applicant’s claims regarding fear of harm for refusing [Mr B]’s request, the harm he fears does not meet the criteria in s 5J(1)(a) of the Act and, it follows, does not meet s 5J(1) as a whole.

Accordingly, in relation to his fears regarding his refusal to inflate the cost of the goods he was delivering, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as defined by s 5J(1) of the Act and therefore he does not meet the definition of ‘refugee’ in s 5H of the Act.
Financial hardship
The applicant claimed he would suffer financial hardship if required to return to Indonesia. He did not specify or particularise this claim, however the Tribunal infers that he fears harm in Indonesia because he will not gain employment and/or he will not have sufficient income to support himself and his family.
While the Tribunal accepts the applicant’s evidence in this regard, there is no claim or indication that the applicant has been, or that there is a real chance he would be, harmed because of his race, religion, nationality or political opinion, or because he is a member of a particular social group. Rather, the essential and significant reason for the harm that the applicant claims he will suffer is because of the operation of the Indonesian economy, not for one of the reasons listed in s 5J(1)(a) of the Act (s 5J(4)(a)).
Therefore, in relation to the applicant’s claims regarding financial hardship in Indonesia, the harm he fears on return to Indonesia does not meet the criteria in s 5J(1)(a) of the Act and, it follows, does not meet s 5J(1) as a whole.
Consequently, in relation to any financial hardship he may suffer, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as defined by s 5J(1) of the Act and therefore he does not meet the definition of ‘refugee’ in s 5H of the Act.
Accordingly, the applicant is not a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion in s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether he is a person in respect of whom Australia has protection obligations under the complementary protection grounds set out in s 36(2)(aa) of the Act.
This requires that there be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act.
‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is defined to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct.[5]
[5] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
‘Degrading treatment or punishment’ is defined to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct.[6]
[6] Ibid.
In addition, there are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
The applicant claims to fear harm in Indonesia because he failed to comply with a request from a government representative to inflate the costs of the goods he was delivering. In his protection visa application he claimed that he and his family were threatened with death. At the hearing he claimed he had been threatened to ‘watch out’ and ‘you carry on [like this] you can be killed’. While the Tribunal accepts that [Mr B] or his agents had contacted the applicant’s family, there was no oral evidence that they had received any particular threats, only that they had called his wife to find out his whereabouts.
Despite the claim that the applicant was threatened with arbitrary deprivation of his life, given the length of time since this purported threat was made, the absence of any physical harm caused to the applicant or his family in Indonesia, and the absence of any contact between [Mr B], his agents and the applicant and/or his family since the beginning of 2018, the Tribunal considers it inherently implausible that [Mr B] has any further interest in the applicant or his family. The Tribunal does not consider there are any substantial grounds for believing that, as a necessary and foreseeable consequence of his return to Indonesia, the applicant will be arbitrarily deprived of his life. For the same reasons, the Tribunal is not satisfied there are any grounds for believing that the death penalty will be carried out on him, or he will be subjected to torture, or any treatment he might receive on his return would constitute cruel or inhuman treatment or punishment or degrading treatment or punishment.
Financial hardship
As confirmed by the applicant at the hearing, the substance of his fear upon return to Indonesia is financial hardship. While the Tribunal accepts that his return to Indonesia may cause some financial hardship, in this respect it is not satisfied that the applicant faces a real risk he will suffer any of the 5 types of harm that constitute ‘significant harm’ under s 36(2A) of the Act.
In this regard, the applicant has not claimed that he will be arbitrarily deprived of his life, or the death penalty will be carried out on him, or he will be subjected to torture. The Tribunal is not satisfied that any financial hardship the applicant might suffer on his return to Indonesia constitutes cruel or inhuman treatment or punishment or degrading treatment or punishment. Such financial hardship, while it may cause stress and anxiety, is not the result of intentionally inflicted pain or suffering by any person or group. Furthermore, there is no demonstrated intention by any person or group to cause extreme humiliation to the applicant. Rather, any financial hardship would be the result of the operation of the Indonesian economy which applies to all Indonesian citizens and/or is the consequence of the applicant being removed from Australia and being required to re-establish himself and gain employment in Indonesia. While the Tribunal acknowledges he may receive a lower salary in Indonesia than he has in Australia, it would fall short of constituting any of the 5 types of significant harm outlined above. Furthermore, the Tribunal is not satisfied that there is any intention on the part of the Indonesian government in its role of managing the economy to inflict significant harm, including subjecting the applicant to cruel or inhuman punishment or degrading treatment or punishment. The Tribunal notes in this regard that the applicant’s family is in Indonesia and, on the basis of the available contemporary country information,[7] to which the Tribunal gives significant weight, and his previous and ongoing work history, it considers he would be able to gain employment.
[7] Australia. Department of Foreign Affairs and Trade. DFAT Country Information Report: Indonesia. 24 July 2023. Paragraphs 2.7–2.11.
For the above reasons, the Tribunal is not satisfied that the applicant’s fear regarding his family’s financial circumstances in Indonesia would constitute significant harm as defined by s 36(2A). Such harm would not amount to arbitrary deprivation of life, infliction of the death penalty, torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment of or to the applicant.
Even if the Tribunal did accept there are substantial grounds for believing that there is a real risk that he will suffer significant harm on his return, s 36(2B)(c) of the Act applies insofar as it provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. The economic situation in Indonesia clearly applies to its population in general, not the applicant personally.
The applicant did not advance any other reason in his claims that he is owed Australia’s protection obligations.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk he will suffer significant harm as a result of his claimed financial hardship.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no evidence 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.
Mary-Ann Cooper
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 4447

7 October 2024

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