1813324 (Refugee)

[2024] AATA 1126

1813324 (Refugee) [2024] AATA 1126 (1 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1813324

COUNTRY OF REFERENCE:         Indonesia

MEMBER:Jennifer Ermert

DATE:1 March 2024

PLACE OF DECISION:                   Melbourne

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

Statement made on 01 March 2024 at 10:40am

CATCHWORDS
REFUGEE – protection visa – Indonesia – ethnicity, religion and political opinion – Chinese Christian and member of group supporting re-election of Chinese politician – targeted by radical Islamic groups – attacked and motorcycle destroyed – application completed with assistance of third person, and political and religious claims discontinued at hearing – fear of harm from Indonesian workers at factory where mother responsible for finances and payroll, which went bankrupt – mother detained but found not responsible – identification of attackers speculative, no further harm and passage of time – anonymous allegation of many similar claims cannot be verified – country information – decision under review affirmed

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

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be an Indonesian citizen applied for the visa on 22 January 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.  

3. The applicant appeared before the Tribunal on 26 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicant was not represented in relation to the review.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

4. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

5. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether or not the applicant is a person in respect of whom Australia has protection obligations under s 36(2) of the Act because the applicant is either a refugee or a person who engages complementary protection obligation, or is a member of the same family unit as such a person who holds a protection visa of the same class.  

Identity and country of nationality

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

2. The applicant did not bring his Indonesian passport to the hearing. However, he presented his Victorian driver’s licence, a copy of which was provided to the Tribunal. The Tribunal is satisfied as to the applicant’s identity on the basis of this and on the basis of the scan of the certified copy of the biodata page of the applicant’s Indonesian passport held on his departmental file. The Tribunal is also satisfied that the applicant is a citizen of Indonesia in the absence of contrary evidence. The Tribunal therefore finds Indonesia is the applicant’s country of nationality for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act.

Immigration history and protection claims

1. The applicant is a [Age] year old Indonesian man of Chinese ethnicity. He arrived in Australia [in] November 2017 on a Class FA Subclass 600 Visitor visa, and has not departed since. 

2. The applicant’s claims as articulated in his protection visa application, in summary, were that he was a member of a group known as Teman Ahok (‘Friends of Ahok’) which worked to support the re-election of Jakarta’s former ethnic Chinese-Christian governor Basuki Tjahaja Purnama, popularly known as Ahok. As a result, he was targeted by members of radical Islamic groups opposed to Ahok. When Ahok was jailed for insulting Islam, things became worse for Ahok supporters like himself. On one occasion, he was stopped and beaten on his way home from work, and his motorcycle was destroyed, however he was advised by his friends against reporting the incident to the police as it would be futile. He could not return to Indonesia due to fear of the same discrimination and bullying arising from hatred towards Chinese and Christians.

Evidence at hearing

1. During the hearing, the applicant disavowed the aforementioned protection claims, except for the incident in which he was allegedly attacked and his motorcycle was damaged, and his fears of harm based on his Chinese ethnicity. The applicant stated he completed the protection visa application form with the assistance of a friend’s friend, but he did not know why this person included claims about his support for Ahok because they were not true and he had not been involved at all in politics in Indonesia.

2. Given this, the Tribunal will disregard the claims in the protection visa application to the extent that they relate to the applicant’s alleged involvement in supporting Ahok and his religious belief as a Christian.

3. The applicant’s oral evidence at hearing was that:

   ·He was born and raised in Surabaya, Indonesia. He is an only child, and his father passed away when he was 14 years old.

   ·He is a Christian of the protestant faith. Although he attended church every weekend including in Indonesia, he attends much less frequently now because his current job requires him to work on weekends. 

   ·He has not experienced harm because of his religion in Indonesia, nor does he anticipate any future harm for that reason if he were to return to Indonesia.

   ·After completing secondary school, the applicant worked for [one of his uncles] who ran a [warehouse]. He worked [there] for 13 years. He has also worked briefly at [another workplace] for 2-3 months.

   ·About 10 years ago, the factory that his mother worked in went bankrupt. The director of the factory absconded to [Country] and left behind many factory workers who were not paid their wages.

   ·As his mother was in charge of the factory’s finances and payroll, she was blamed by the (mostly Javanese) Indonesian workers for non-payment of their wages. His mother was also detained by the police over alleged offences associated with the factory’s bankruptcy (signing blank cheques), but she was ultimately cleared by the court and declared ‘not guilty’ and exonerated of any responsibility for the factory’s bankruptcy. 

   ·A couple of months after the factory went bankrupt and closed, the applicant was intercepted by a gang consisting of 3 men on his way home from work. He claimed the men, who he did not know, targeted him because of his relationship with his mother who they blamed for the factory’s bankruptcy. He claimed the men removed his helmet and used the helmet to hit him over his face and head.  He was pushed to the ground and his motorcycle was kicked until it was damaged.  

   ·When asked how he knew the men had targeted him because of his relationship to his mother if he did not know the men, the applicant claimed they knew his face because he used to regularly visit his mother at the factory.  He also claimed he did not have any enemies and did not have any issues in Indonesia before that, so the factory’s bankruptcy and the consequent non-payment of worker wages that his mother was blamed for was the only reason he could think of for the attack.

   ·The applicant said he reported the attack to the police but was counselled by his uncle not to take the issue any further to avoid complicating things for his mother who was at that time still in custody. He took his uncle’s advice and only went to the hospital over a 2-week period to receive treatment for his swollen left eye and other minor injuries.

   ·The applicant claimed he cannot return to Indonesia because the same sort of thing could happen to him again. When asked why he believed this, the applicant claimed his mother has been unable to pay the factory workers their outstanding wages. The Tribunal asked why his mother has to pay the outstanding wages given she has already been cleared by the court of any responsibility for the factory’s bankruptcy. The applicant responded that the Javanese Indonesian workers do not care about that and would not listen to reason; as far as they are concerned, his mother remains responsible for their restitution.  

   ·The Tribunal asked the applicant whether he has experienced any other forms of harm in Indonesia apart from the gang attack, to which the applicant responded ‘no’.

4. In addition to the above evidence, the applicant was also invited to comment on some adverse information the Tribunal received that applies to the applicant which, if relied on, would be the reason or part of the reasons for affirming the decision to refuse his protection visa application. The information alleges that many people who came from Indonesia on a Tourist visa to Australia applied for a protection visa as soon as they arrived; that they typically claimed to be supporters of Ahok who feared persecution from radical groups such as the Islamic Defenders Front (‘FPI’); and that the protection claims are fake and made solely for the purpose of enabling the individuals concerned to stay in Australia. In doing so, the Tribunal acknowledged that the applicant has disavowed the claims made in his protection visa application in relation to his support of Ahok.

5. In response, the applicant agreed that the claims with respect to his involvement in supporting Ahok were made up (by the person who helped him with his protection visa application), but maintained his other claims with respect to the gang attack and the race-based fears were true.

6. Given the applicant has disavowed the protection claims with respect to his support for Ahok, and given the adverse information came from an anonymous source whose reliability cannot be verified, the Tribunal accepts the applicant’s response and gives no weight to the adverse information.  

REASONS FOR THE TRIBUNAL’S DECISION

1. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed because the applicant does not meet any of the criteria in s 36(2).

Assessment of refugee status

1. To be eligible for the grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a), the applicant must show he has a well-founded fear of persecution in Indonesia, and owing to that fear, is unable or unwilling to avail himself of the protection of Indonesia. This requires an assessment of whether there is a real chance that the applicant would be persecuted because of his race, religion, nationality, membership of a particular social group or political opinion.

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

Physical attack by gang

1. On the basis of the evidence the applicant has provided, the Tribunal is not satisfied there is a real chance that the applicant would suffer serious harm in the reasonably foreseeable future from the unpaid workers of the former factory where his mother worked, if he were to return to Indonesia.

2. The Tribunal accepts the claimed attack occurred and the Tribunal accepts it must have been distressing, particularly given the applicant’s evidence that bystanders simply looked on without a single person intervening. 

3. However, the Tribunal does not accept that the men who attacked the applicant were workers of the former factory where his mother also worked, or that the men targeted him because of his relationship to his mother. Given the recency of the factory’s demise and given the applicant has not otherwise had issues with other people, the applicant’s association of his attack with the former factory workers’ animosity towards his mother is understandable, but it does not mean that his attackers were indeed workers from the former factory.  The men were unknown to him, and the suggestion that those men recognised his face because of his regular past visits to his mother at the factory is speculative at best.

4. Further, the attack occurred 10 years ago, i.e. around 2013-14, some 3-4 years prior to the applicant’s departure from Indonesia on [Date 1] November 2017 and arrival in Australia on [Date 2] November 2017.  The applicant has not given evidence that he was subjected to further targeted harm by the unpaid former factory workers in those intervening 3-4 years. Considering the further passage of time since, there is no basis for the Tribunal to believe that if the applicant returned to Indonesia now that he would become the focus of renewed adverse attention from those former factory workers.  

5. Having carefully considered the applicant’s evidence in its entirety, the Tribunal finds a more plausible explanation for what happened 10 years ago is that it was an unfortunate but otherwise random attack.  Although it is possible that the former factory workers harboured resentment over their unpaid wages following the factory’s collapse and they found a soft target in the applicant’s mother (an ethnically Chinese woman in charge of the factory’s finances and payroll) to direct their anger, in the absence of empirical and reliable contrary evidence, the Tribunal does not accept that the former factory workers targeted, or would continue to target, the applicant’s mother or indeed the applicant with the intention to cause serious harm.     

Claim based on race  

1. At the hearing, the applicant has made only generalised claims of racial discrimination based on his Chinese ethnicity. Specifically, he claimed that when he was younger he was attacked because he is Chinese, and that when he looked for work he encountered bullying and discrimination for being Chinese. When the Tribunal asked the applicant to elaborate on those claims, the applicant gave evidence in relation to the gang attack. 

2. As already discussed, the Tribunal accepts as possible that the former factory workers, who the applicant said were mainly Javanese Indonesian, directed their anger over unpaid wages to his mother because she was a soft target as an ethnically Chinese woman (in addition to being in charge of the factory’s finances and payroll). However, for the reasons already discussed, the Tribunal rejects the claim that this led to the applicant’s attack and finds instead that the attack was a random incident.  Whilst it is possible that the attackers picked the applicant to be their victim because of his Chinese ethnicity, the Tribunal does not have sufficient information to be satisfied that this was so. 

3. Similarly, the Tribunal does not have information on which to find that the applicant was bullied or discriminated against in employment because of his Chinese ethnicity, given the applicant’s evidence when asked to elaborate focussed on the gang attack. Regardless, the Tribunal does not accept on available country information that there is a real chance that the applicant would suffer serious economic or other harm because of his ethnicity as a Chinese Indonesian. The DFAT Country Information Report for Indonesia dated 24 July 2023 states:

   “The Suharto-era New Order regime implemented a range of discriminatory measures, prohibiting Chinese language newspapers, schools and cultural expression and requiring Indonesian names. Violence and looting targeting Chinese Indonesians and their homes and businesses peaked during the Asian Financial Crisis. Since the end of the New Order regime in 1998, successive governments have removed official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is a national public holiday, Confucianism is an officially recognised religion, Chinese-language newspapers are published, and there are no barriers to Chinese cultural celebrations or education.

   Hundreds of thousands of protesters demonstrated in Jakarta on several occasions in 2016 to demand the detention of the Christian and Chinese-Indonesian Governor of Jakarta, Basuki Tjahaja Purnama (often referred to as ‘Ahok’), after he was arrested for allegedly insulting Islam. Violence between protesters and police was reported, but not violence against ordinary citizens, as occurred in 1998.

   Chinese Indonesians experience societal discrimination in the form of negative stereotypes that portray them as greedy, as criminals or as being associated with China and its policies. Discrimination of this type increased around the outbreak of the COVID-19 pandemic due to the extensive media coverage of China and various claims about the origins of the virus at the time.

   Risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Individuals with wealth are less affected; they can use their wealth and connections with powerful people to protect themselves. Many Chinese Indonesians work in family businesses or within their own ethnic community, which reduces the chances of discrimination at work. Those without such networks or wealth would be more at risk of discrimination, but that applies to all Indonesians, not just Chinese Indonesians.

   Memories of the 1998 violence and 2016 protests are still fresh in the memories of many ethnically Chinese Indonesians. Some jealousy of perceived wealth can lead to threats and some Chinese Indonesians keep a low profile as a result. Anti-minority sentiment is also heightened during election campaigns. Violence has occurred in the past but is not an everyday experience for Chinese Indonesians.”[1]

   [1] Department of Foreign Affairs and Trade Country Information Report – Indonesia, 24 July 2023, pg. 11-12, [3.7] – [3.11].

1. Consistent with the DFAT Country Information Report, the applicant worked as a warehouse supervisor for his uncle which likely means he did not really face racial discrimination at work before his departure from Indonesia. It is unclear how his employment experience might change if he were to return to Indonesia and look for work outside of ethnic Chinese communities.  However, on the DFAT Country Information Report, discrimination is not limited to Chinese Indonesians but applies to all Indonesians who do not have powerful networks or wealth, and whilst anti-Chinese violence has occurred in the past, it is not an everyday experience for Chinese Indonesians and there is presently no official policy of discrimination against Chinese Indonesians.

2. Accordingly, and also on the basis of the applicant’s evidence that he has not in fact experienced any harm in Indonesia apart from the gang attack, the Tribunal finds there is not a real chance that the applicant would suffer serious harm because of his Chinese ethnicity in the reasonably foreseeable future, should he return to Indonesia now.

Complementary protection assessment

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether the applicant’s circumstances are such as to give the Tribunal substantial grounds to believe that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of his removal from Australia to Indonesia. 

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

3. For the same reasons that the Tribunal does not accept there is a real chance the applicant would be persecuted if he returned to Indonesia because of his relationship to his mother who was blamed by workers of the former factory where she also worked for unpaid wages arising from the factory’s bankruptcy, or because of his Chinese ethnicity, the Tribunal does not accept there are substantial grounds for it to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk he would suffer significant harm. 

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

Other criteria – member of family unit

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

DECISION

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

Jennifer Ermert
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1)Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or

(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or

(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or

(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)for the purpose of intimidating or coercing the person or a third person; or

(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5HMeaning 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.

…

5JMeaning 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.

1. 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.

1. 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:

1. 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;

2. conceal his or her true race, ethnicity, nationality or country of origin;

3. alter his or her political beliefs or conceal his or her true political beliefs;

4. conceal a physical, psychological or intellectual disability;

5. enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

6. alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

1. 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.

1. 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.

1. 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.

5KMembership 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:

1. the first person has ever experienced; or

2. 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.

5LMembership 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:

1. the characteristic is an innate or immutable characteristic;

2. the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

3. the characteristic distinguishes the group from society; and

(d)the characteristic is not a fear of persecution.

5LAEffective 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:

1. the relevant State; or

2. 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.

1. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

1. is mentioned in paragraph (a); and

2. 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:

1. is mentioned in paragraph (aa); and

2. 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.

…