1827552 (Refugee)

[2024] AATA 1378

1827552 (Refugee) [2024] AATA 1378 (22 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1827552

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Wayne Pennell

DATE:22 April 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 22 April 2024 at 3:27pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – religion – fear of killing – extramarital affair – corruption – period of unlawful residence – delay in applying for protection – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 420, 425, 426, 441, 499
Migration Regulations 1994, Schedule 2

CASES

ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346
Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423

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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 14 September 2018.

2. The applicant, who is a citizen of Indonesia, applied for a Protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Indonesia, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations.[4]

   [2]The Department of Home Affairs received the applicant’s application on 26 June 2018.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant was not represented throughout the review process and he filed an application (‘review application’) with the Tribunal to review the delegate’s decision.[5] Within his review application he said that he required an interpreter to assist him communicating with the Tribunal and he nominated that the language was Indonesian. When he lodged his application for a Protection visa with the Department, he described that he could not read or the English language, but he could read, write and speak “Bahasa Melayu”, which the Tribunal understands to be the Malay language. 

   [5]The Tribunal received the applicant’s review application on 20 September 2018.

4. On 21 September 2018, the Tribunal dispatched an email to the review applicant enclosing a letter acknowledging receipt of his review application. In that letter, it was explained to him that it was important that he keep the Tribunal informed if he changed his contact details (such as his residential address, mailing address, telephone number, fax number or email address). If he had a representative or authorised recipient, it was also important that he also tell them of any change in his contact details. If he did not do that, then he might not receive an invitation to a hearing or other important information and his case may be decided without further notice. He was also asked to immediately tell the Tribunal if his personal circumstances changed because this was relevant to the review of the delegate’s decision. He was further informed that if he wished to provide material or any written arguments for the Tribunal to consider, then he should do so as soon as possible.

5. On 5 October 2023, the Tribunal dispatched an email to the applicant advising him that his case was being prepared for allocation to a member of the Tribunal. He was provided with a link to a pre-hearing information form and was asked to complete that form, and then return it to the Tribunal within seven days. He did not respond to the Tribunal’s email or the request to complete the pre-hearing information form.

6. On 23 January 2024, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his review application but it was unable to make a favourable decision on that information alone. Subject to the provisions of section 425 of the Act, he was invited to attend a review hearing scheduled for 20 February 2024 so that he could give evidence and present his arguments. He was advised that if he did not attend the hearing, the Tribunal may make a decision on his case without further notice. Also provided to him was a ‘Response to hearing’ template, and he was asked to complete the template and return it to the Tribunal within seven days. He did not return the template within that time period.

7. Leading up to the scheduled hearing, the Tribunal sent SMS reminders to the applicant about the hearing. The first SMS reminder was sent on 13 February 2024, which is five business days prior to the hearing.[6] That SMS reminder outlined:

   [6]SMS hearing reminder was sent to the applicant’s mobile [number] at 11:01am.

   Reminder - Your AAT hearing is on 20/02/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.

8. The second SMS reminder was sent at 11:01am on 19 February 2024, which is one business day prior to the hearing. That SMS reminder repeated the earlier message sent on 13 February 2024.

9. Within four hours of the second SMS reminder being sent to him, the applicant sent an email to the Tribunal and finally returned the response to hearing template. In that template, he said that he had relocated to Victoria and he was seeking to have the hearing postponed. The template also indicated that he required a Vietnamese interpreter to assist him to communicate with the Tribunal. The Tribunal advised the applicant that given the late notice of his request, his request for a postponement was refused and the hearing would proceed by way of video conferencing. The appropriate details of how to connect to the Tribunal via video conferencing were provided to him.      

10. To assist the applicant in the hearing process, arranged for him from an interpreter in both Indonesian and English languages. When the hearing commenced on 20 February 2024, the applicant was asked why he had nominated in his response to the hearing invitation template that he required a Vietnamese interpreter, whereas in his application for a Protection visa he said he requited an Indonesia interpreter. His explanation was that he had a Vietnamese friend fill out the template.

11. When the hearing commenced, the applicant claimed that he and the interpreter were not fully conversant with each other because the applicant could not completely understand the dialect used by Indonesian interpreter. It appeared to the Tribunal that the applicant had a basic skill of communicating in English, however the Tribunal in appreciating that English was not his first language asked him to specifically identify the correct dialect that he required. He then wrote on a piece of paper and held it up to his camera the dialect he required. He nominated Tio Chiew. In fairness to the applicant, the hearing was postponed to 27 February 2024 and arrangements put in place whereby a different interpreter could be arranged who spoke the specific Tio Chiew dialect that he had requested.

12. On 21 February 2024, the Tribunal dispatched to the applicant an email advising him that the review hearing had been re-scheduled for 27 February 2024, commencing at 1:00pm. Arrangements were put in place for him to appear at the hearing by remote conferencing. He was provided with a response to hearing invitation template and asked to complete that document and return it to the Tribunal.

13. On 25 February 2024, the applicant returned to the Tribunal via email the completed response to hearing invitation template advising that he would be attending the hearing. He also reminded the Tribunal that the interpreter should be conversant in the Tio Chiew dialect.

14. On 27 February 2024, the applicant appeared at the scheduled hearing by video, as did the interpreter, who was conversant and qualified in interpreting the Tio Chiew dialect. When the hearing commenced, the applicant again claimed to have difficulties understanding the interpreter’s dialect. Over a period of almost two hours, and with the assistance of the interpreter discussions were undertaken with the applicant. Although he claimed on occasions to have difficulties in understanding the interpreter, the Tribunal was not entirely convinced that the difficulties that he claimed were genuine. At one point, he was asked whether the Tribunal member was wearing spectacles, to which he immediately responded in the affirmative. However, out of fairness to the applicant, he was given the benefit of the doubt as to the language dialect spoken by the interpreter and the hearing was postponed to a later date and rescheduled for 13 March 2024.

15. In the meantime, the Tribunal established that the Tio Chiew interpreter engaged for the hearing on 27 February 2024 spoke the dialect for the region of Indonesia where the applicant is from. That same interpreter was again engaged for the rescheduled hearing on 13 March 2024.   

16. On 5 March 2024, the Tribunal dispatched an email to the applicant and enclosed a letter advising him that the review hearing was rescheduled to commence on 13 March 2024. Also provided to him was another response to hearing template and he was asked to complete the template and return it to the Tribunal. He did not respond to the email and nor did he return the template to the Tribunal.

17. Leading up to the rescheduled hearing for 13 March 2024, the Tribunal sent two SMS reminders to the applicant about that hearing. The first SMS reminder was sent on 6 March 2024, which is five business days prior to the hearing.[7] That SMS reminder outlined:

    [7]SMS hearing reminder was sent to the applicant’s mobile [number] at 11:01am.

    Reminder - Your AAT hearing is on 13/03/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.

18. The second SMS reminder was sent on 12 March 2024, which is one business day prior to the hearing.[8] That SMS reminder repeated the earlier message sent to the applicant on 6 March 2024.

    [8]SMS hearing reminder was sent to the applicant’s mobile [number] at 11:52am.

19. At the time of the rescheduled hearing on 13 March 2024, no response had been received from the applicant relating to that hearing and he failed to appear at the rescheduled hearing. Because he did not appear at the hearing, the Tribunal telephoned his nominated telephone number several times. Those occasions were:

    09:48am:Telephone call made to the applicant. He did not answer and his phone rang out to voicemail. No voice message was left.

    09:53am: Applicant was telephoned again. He did not answer and his phone rang out to voicemail. No voice message was left.

    10:01am: Applicant was telephoned again. He did not answer and his phone rang out to voicemail. No voicemail was left.

    10:11am: Applicant was telephoned again. He did not answer and a voicemail message was left asking him to telephone the Tribunal as soon as possible.

    10:22am: Applicant was telephoned again. He did not answer and his phone rang out to voicemail. No voicemail was left.

    10:25am: Interpreter dismissed. Hearing cancelled because of the applicant’s non-appearance. 

20. An administrative error occurred and the applicant was provided with notification of an interim dismissal of his application. Subsequently, on 25 March 2024 he was notified of that error and he was again invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. He was later advised on 28 March 2024 that a hearing had been scheduled for him on 22 April 2024, commencing at 10:00am. Pursuant to section 425 of the Act, he was formally invited to attend that hearing and he was again provided with a response to hearing template and asked to return the completed template within seven days. He did not respond to the Tribunal’s invitation, and nor did he return the template.

1. Leading up to the rescheduled hearing, the Tribunal sent two SMS reminders to the applicant about the hearing scheduled for 22 April 2024. The first SMS reminder was sent on 15 April 2024, which is five business days prior to the hearing.[9] That SMS reminder outlined:

   Reminder - Your AAT hearing is on 22/04/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.

2. The second SMS reminder was sent on 19 April 2024, which is one business day prior to the hearing.[10] That SMS reminder repeated the earlier message sent on 15 April 2024.

23. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with section 441A(5) of the Act, the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing.

24.   On the morning of the rescheduled hearing, the Tribunal attempted to contact the applicant by twice telephoning his nominated mobile telephone number. The first call was made at 10:00am, which was the time the hearing was scheduled to commence. His mobile telephone was switched off and the Tribunal assistant left a message on his voicemail about the hearing and he was asked to contact the Tribunal. He did not contact the Tribunal. The second telephone call was made at 10:03am, and again the mobile telephone was switched off. No message was left on the second occasion.

25. In these circumstances, and pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

CRITERIA FOR A PROTECTION VISA

[9]SMS hearing reminder was sent to the applicant’s mobile [number] at 11:02am.

[10]SMS hearing reminder was sent to the applicant’s mobile [number] at 11:02am.

1. The measures for a Protection visa are set out in the Act[11] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[12] That is, the applicant 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.

   [11]Migration Act 1958 (Cth), s 36.

   [12]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

2. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[13]

   [13]Migration Act1958 (Cth), s 36(2)(a).

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.[14] 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.[15]

   [14]Migration Act1958 (Cth), s 5H(1)(a).

   [15]Migration Act1958 (Cth), s 5H(1)(b).

4. The Act also provides that 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.[16] 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 the Act, which are extracted in the attachment to this decision.[17]

   [16]Migration Act 1958 (Cth), s 5J(1).

   [17]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

5. If a person is found not to meet the refugee criterion in the Act,[18] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[19] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[20]

   [18]Migration Act 1958 (Cth), s 36(2)(a).

   [19]Migration Act 1958 (Cth), s 36(2)(aa).

   [20]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

6. The Act makes provision for and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[21]

   [21]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

7. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[22]

   [22]Migration Act 1958 (Cth), s 36(2B).

   COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

8. The applicant claims to be a citizen of Indonesia and provided a copy of his passport to the Department to authenticate this claim. The Tribunal accepts his identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Indonesia is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[23]

   [23]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

1. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[24]

   [24]Migration Act 1958 (Cth), s 36(3).

   MANDATORY CONSIDERATIONS

2. In accordance with Ministerial Direction No. 84 made under the Act,[25] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.

   APPLICANT’S APPLICATION

   [25]Migration Act 1958 (Cth), s 499.

   Background

3. On 14 December 2011, the applicant was granted a short term Tourist visa (subclass 676). Approximately two weeks after his visa was granted, the applicant arrived in Australia [in] December 2011 subject to the conditions of that visa. The Tourist visa was valid for three months after he arrived in the country and it expired [in] March 2012.

4. His migration history held by the Department shows that the following:

DATE	EVENT
14 December 2011	Granted a short term Tourist visa (subclass 676).
[December] 2011	Arrived in Australia.
[March] 2012	Tourist visa granted on 14 December 2011 expired.
[April] 2012	Failed to depart Australia. Remained onshore without a visa and was an unlawful non-citizen for the next six years and three months until granted a Bridging visa on 16 July 2018 (emphasis added).
26 June 2018	Lodged a Protection visa application with the Department.
16 July 2018	Granted Bridging visa C.
14 September 2018	Application for a Protection visa refused by the delegate.
20 September 2018	Lodged his review application with the Tribunal.

Claims

1. In his Protection visa application, the applicant claimed that he left Indonesia because he had an affair with the wife of a rich businessman and the businessman hired someone to kill the applicant. The businessman’s wife heard about the plan and immediately warned the applicant to go overseas. He travelled to Australia and he claims that he is sure that if he returned to Indonesia, he will not be safe and he will be killed because of the affair with the married woman, and also because her husband continues to search for him. In respect to state protection, the applicant claimed that the Indonesian authorities would not be able to help or protect the applicant as he does not have enough evidence or proof, so they will not take action against the businessman. The applicant claimed that he would never be safe as there was no one that can protect him.

2. When discussing the possibility of him relocating to some other place within Indonesia for his own protection, the applicant claimed that he was unable to relocate. He had previously tried to relocate but because the businessman has influential power and a lot of henchman around Indonesia, it was difficult to hide from them. He claimed that if he returned to Indonesia it was still not safe for him. Specifically, the following is a replication of the claims as made by the applicant in accordance with the questions asked. The responses to the questions were hand written and they are replicated as per the words used by the applicant.

76

Why did you leave that country/those countries?

The reasons why I came to Australia was I have elicit affair to a wife of a rich business man. In our place, and when her husband found out our secret relationship with his wife. Her husband hires out someone to put me to death, but his wife heard the pland. She was immediately warned me to go oversea, that’s why I am in Australia.

77

What do you think will happen to you if you return to that country/those countries?

If I go back to my country in Indonesia. I can’t confirm and be sure that I will be safe from who tried to put me to death They are still searching for me until presently.

81

Do you think you will be harmed or mistreated if you return to that country/those countries?

Absolutely yes. If I am go back to my country. I don’t think I can work as frequently and safe from them anymore as the part the experience befor. I am still afraid and concerning they will come and put me to death.  

82

Do you think the authorities of that country/those countries can and will protect you if you go back?

No, I don’t think the authorities of the government will help me and protect me. I don’t have enough evidence to proof so they could not condone him . and I will never be safe as no one can protect me.

83

Do you think you will be able to relocate within that country/those countries to an area where you would not be harmed?

Definitely no way. I can’t relocate. I tried before but because her husband has influential power and a lot of his henchmen around my country. It is difficult for me to hide from them. Wherever I go it is still not safe for my life.

Delegate’s assessment of his application

1. Following the applicant lodging his application with the Department, the Department wrote to him on 16 July 2018 and acknowledged receiving his application. He was advised at that time that:

   As outlined in your Protection visa application form, all claims, supporting documentation and evidence should have been provided when you lodged your application. You may bring any additional information you would like considered to your appointment for the collection of personal identifiers or provide through ImmiAccount or by mail.

2. The Tribunal particularly notes that he provided no additional evidence or material to the Department and on 14 September 2018, the delegate made a decision to refuse the applicant’s application, and he was appropriately advised of that decision. The applicant then lodged his review application with the Tribunal on 20 September 2018, along with a copy of the delegate’s decision record.

3. It was the delegate’s assessment that a refugee is a person who has, as defined in section 5J(1)(a) of the Act, a well founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. A person who has a well founded fear of persecution for other reasons is not a refugee within the terms of the Act. It was noted by the delegate that the applicant claimed to fear harm upon his return to Indonesia because he had an affair with another person’s wife, and her husband is a wealthy businessman.

4. When assessing the applicant’s application, claims and the evidence he provided, the delegate identified that he had not claimed to fear harm in Indonesia for his race, religion, nationality, political opinion or that he was a member a particular social group. There was no information before the delegate to show that he would be targeted upon his return to Indonesia for one or more of those reasons just explained.

5. Consequently, the delegate was not satisfied that the applicant was a refugee as defined in section 5H(1) of the Act, and it was determined that he was not a person in respect of whom Australia had protection obligations as provided for in section 36(2)(a) of the Act.

   Background information

6. Because the applicant has not fully engaged with the Tribunal, very little is known about his personal background other than what he inserted into Part C of his application for a Protection visa. In that application he described that he was from Pontianak, Indonesia and he was married. He provided his wife’s name and said that they were married in 1982. There is no indication in his application that they have divorced, although he indicated that he is not in contact with any relatives outside Australia. He nominated that from 1990 to 2009 he owned a farm at Pontianak, and later from March 2010 he was unemployed. He described that he attended a school in Pontianak [between specified years] and he claimed to have not travelled to any other international destinations other than Australia.  

7. The basis of the applicant’s protection claims as displayed within his application are that he left Indonesia because had an affair with the wife of a rich businessman. On finding out about the relationship, the businessman hired someone to kill the applicant. His wife however heard the plan and immediately warned the applicant to go overseas, that is when the applicant travelled to Australia. He is sure that if he returned to Indonesia, he will not be safe and he will be killed because of the past experience of having an affair with the married woman, and also because the woman’s husband continues to search for him.

8. In respect to state protection, the applicant claimed that the Indonesian authorities would not be able to help or protect the applicant as he does not have enough evidence or proof, so they will not take action against the businessman. The applicant claimed that he would never be safe as there was no one that can protect him.

9. It is also noted by the Tribunal that when the applicant completed Part B of his application, he was asked to complete a series of questions nominated in section 3. Section 3 of Part B relates to his character and he was specifically asked whether he had overstayed a visa in any country (including Australia). That question in section 3, along with every other question relating to his character were left blank.

10. During the period of almost six years since he lodged his application for a Protection visa with the Department, there has never been a time when the applicant has ever provided any evidence to either the Department or the Tribunal to support his claims. Notwithstanding that both the Department and the Tribunal have written to him and reminded him of this, he has not taken the opportunity to provide any supporting material or evidence to the Tribunal and as already outlined in these Reasons, and when the Tribunal invited him to appear at a hearing, he did not respond to that invitation.

    COUNTRY INFORMATION

11. The applicant claimed that he has a well-founded fear that he will not be safe and will be killed by a businessman, or henchmen associated with the businessman if he returned to Indonesia. He claims the authorities will not help or protect him as he does not have enough evidence or proof about what the businessman has threatened to do. The applicant claims he will never be safe as no one can protect him. The businessman is also influential and powerful.

12. Available to the Tribunal is credible and reliable country information  contained within the DFAT Country Information Report on Indonesia (‘DFAT Report’).[26] The DFAT Report specifically addresses issues such corruption, state protection, the judiciary and conditions for returnee asylum seekers. Other country information available to the Tribunal addresses the legalities of adultery in Indonesia.

    [26]The DFAT Country Report, Indonesia, 29 June 2021.

13. Because the applicant did not appear before the Tribunal at the review hearing,[27] the Tribunal could not exercise its discretion to give him clear particulars of certain information in the possession of the Tribunal relating to Indonesia, in particular information surrounding those points just identified in these Reasons. That information was contained within a DFAT Country Information Report on Indonesia, a United States of America State Department report on human rights in Indonesia and various other relevant articles relating to the issues just identified.

    [27]Subject to the provisions of the Migration Act 1958 (Cth), s 425.

    Corruption and state protection

14. The DFAT Report on Indonesia provides that corruption is a longstanding issue within Indonesia ranging from petty day-to-day issues to examples of large-scale corruption. Overall, Indonesia ranked 110 out of 180 countries in the 2022 Corruption Perceptions Index published by Transparency International. Judicial and bureaucratic decision-making and police interaction are, at times, susceptible to the payment of bribes. Notwithstanding strong laws against corruption, international commentators have observed weak enforcement of anti-corruption legislation, ineffective regulatory mechanisms and conflict legislation, a culture of nepotism and favouritism, and bribery in the public service, judiciary, police and politics. Petty corruption is common in areas such as policing and education, particularly higher education. The main anti-corruption authority is the Corruption Eradication Commission (KPK), however various other Indonesian agencies may also tackle corruption. The KPK enjoys popular support among Indonesians, and it has been involved in a number of high-profile prosecutions. These efforts tend to be focused on grand corruption; the petty corruption that most Indonesians experience in their day-to-day lives is unlikely to be affected by high-profile anti-corruption efforts.[28]

    [28]The DFAT Country Information Report, Indonesia, 24 July 2023, page 7, paragraphs 2.12 to 2.14.

15. Notwithstanding the country information just described about corruption, the country information within the DFAT report provides that the Indonesian National Police is responsible for internal security and reports directly to the president. The Indonesian National Armed Forces, which also report directly to the president, are responsible for external defence and combatting separatism, and in certain conditions may provide operational support to police, such as for counterterrorism operations, maintaining public order, and addressing communal conflicts. Civilian authorities maintained control over security forces.[29] The day-to-day experiences with police differ, some are better educated or better trained than others and depending on a person’s levels of wealth, education or personal networks, some people fear police because of fear of unwarranted arrest or violence, or because of the force’s reputation for corruption.[30] The DFAT Report describes that police are known to demand bribes for relatively minor offences, or at traffic stops, and also in relation to criminal investigations, for example, to commence an investigation or to make a particular finding. Understandably, bribes can change police outcomes in favour of the person giving the bribe.[31]

    [29]United States of America State Department Indonesia 2022 Human Rights Report, page 1, accessed 15 February 2024.

    [30]The DFAT Country Information Report, Indonesia, 24 July 2023, page 30, paragraph 5.1.

    [31] The DFAT Country Information Report, Indonesia, 24 July 2023, page 30, paragraph 5.2.

16. There has been no evidence provided by the applicant with respect to him making any complaint to the police about what he claims was a threat to his life, and he claims that because he did not have enough proof of the threats, he does not think the police could or will protect him. Nor has there been any evidence provided by the applicant to validate the claim that because of corruption, he would not be protected by the Indonesian authorities. At its very best, his claims are vague and ambiguous and nor has he provided any evidence or information to support this claim and when weighing the country information available to the Tribunal to his claim, the Tribunal places greater weight on that country information which describes that while interactions with police may differ from case to case, the Indonesian police are generally effective at detecting and investigating crime.[32]

    [32]The DFAT Country Information Report, Indonesia, 24 July 2023, page 30, paragraph 5.2.

    DELAY IN LODGING APPLICATION

17. Earlier in these Reasons the Tribunal referred to the applicant being granted a visitor visa on 14 December 2011. He arrived in Australia [in] December 2011, and his visitor visa expired [in] March 2012. From the time he arrived in the country, an extraordinary amount of time spanning approximately six years and six months passed until he lodged his application for a Protection visa with the Department on 26 June 2018.

18. The applicant has never explained why he waited until well over six years had passed before he lodged his application and the Tribunal is satisfied (and so finds) that the extraordinary amount of time which had passed after his arrival before he made his application is a significant delay. In respect to any consideration given by the Tribunal about that significant delay, guidance is found by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 (‘Subramaniam‘) where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.

19. As it has already been identified in these Reasons, when the applicant completed Part B of his application, he was asked to complete a series of questions nominated in section 3. Section 3 of Part B relates to his character and he was specifically asked whether he had overstayed a visa in any country (including Australia). That question in section 3, along with every other question relating to his character were left blank. When assessing the significant delay in making his application, and what appears to be an avoidance by the applicant to answer questions in his application about his character, the Tribunal is satisfied that significant doubt exists as to the credibility of the applicant and the claims he relies upon.    

20. Apart from lodging his application with the Department, he has never provided any information, evidence or material to support his protection claims. When his application was refused, and he applied to the Tribunal to review that decision, apart from asking for a letter relating to Medicare assistance, he never engaged with the Tribunal and ignored the Tribunal’s advice that he should keep the Tribunal informed as to any change in his circumstances, in particular his residential address.

21. The Tribunal is aware that a delay in applying for protection should not be the sole reason for doubting an applicant’s claims and there should be other reasons to support a finding that an applicant’s claims are not credible and the significance of any delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.[33] The Tribunal is satisfied (and so finds) that when close examination is undertaken of all the circumstances relating to the applicant’s time in Australia, including when he was unlawfully here for over six years, it has now been over 12 years since he arrived in Australia. In that extraordinary length of time, he has been reluctant to properly engage with the migration process as well as the review process of his application before the Tribunal.  

    [33]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346: Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998.

22. When considering that extraordinary amount of time found by the Tribunal to be a significant amount of time in him making application, and weighing that against the applicant’s attitude to the review process before the Tribunal, the Tribunal is satisfied that it cannot be accepted that his application and his claims are genuine. Therefore, when assessing the genuineness or depth of the applicant’s fear of persecution should he return to Indonesia against all the known facts of this matter in regard to the significant delay, the Tribunal is satisfied (and so finds) that the significant delay can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm because a significant delay is not behaviour indicative of someone who fears for their physical safety.[34]

    [34] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

    CONCLUSION AND REFUGEE FINDINGS

1. The very nature of a review hearing is that it is conducted from the beginning (anew) and the Tribunal is to review the material, information an evidence made available to it and consider all of that afresh and make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. The Tribunal is not bound by technicalities, legal forms or rules of evidence; and  must act according to substantial justice and the merits of the case.[35] Although the very nature of a review hearing is inquisitorial, and the Tribunal can seek out evidence it requires in order to reach a determination, it has no obligation to seek out evidence to support the applicant’s claims, even though the Tribunal is entitled to do so.[36]

   [35]Migration Act 1958 (Cth), s 420.

   [36]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].

2. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

3. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[37]

   [37]Migration Act 1958 (Cth), s 36(2).

4. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.

5. Importantly, the Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. 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.[38] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[39]

   [38]Migration Act 1958 (Cth), s 5AAA.

   [39]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

6. Specifically outlined in paragraphs 38 and 39 of these Reasons are the original claims expressed by the applicant when he lodged his application with the Department. Notwithstanding the number of opportunities offered to him, the applicant has never provided the Department or the Tribunal with any material, information or evidence to explain or validate what he says was the reasons he left Indonesia of the reasons why he meets the criteria of a refugee.

7. The Tribunal is satisfied (and so finds) that there has been absolutely no evidence provided by the applicant to support his claims, and there is an obvious absence of any specific details about the identity of the married woman he supposedly had an affair with, and nor has he provided any information about the identity of the businessman he claims that he would be harmed by if he returned to Indonesia.

8. He has failed to specifically nominate when this alleged extra-marital affair took place with the businessman’s wife, where and in what locality within Indonesia this all took place (if at all) and nor did he describe over what period of time or when this supposed affair took place. The Tribunal is satisfied (and so finds) that his claims lack specificity, they are devoid of any details and are vague and ambiguous in nature. Had the applicant engaged with the Tribunal and appeared at the scheduled hearing and provided evidence and arguments to support his case, those ambiguous and vague claims could have been canvassed with him, and he would have been afforded the opportunity to address the Tribunal’s doubts as to the veracity of what he claims, and he would have also been afforded the opportunity to address the available country information. Because he has not engaged with the review process, the Tribunal is unable to draw any positive favourable conclusion for the applicant about the claims he made. When the nature of the adverse weight of the extraordinary delay in lodging his application is applied to the vague nature of the claims, the Tribunal finds that the claims are devoid of any credibility they should be discounted and given no weight when applying the refugee criteria to the applicant.  

9. In conclusion, in addition to the findings already arrived at, the Tribunal is also satisfied that when objectively assessing the claims he made, the applicant does not have a well-founded fear of persecution as provided within the Act as he does not fear being persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion as required by section 5J(1)(a) of the Act. Therefore the Tribunal is not satisfied that he is a refugee as defined in section 5H(1) of the Act and accordingly, the Tribunal finds that he is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.

   COMPLEMENTARY PROTECTION CONSIDERATIONS

10. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[40] the Tribunal has considered the alternative criterion.[41] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia, there is a real risk that he will suffer significant harm as it is defined in the Act.[42]

    [40]Migration Act 1958 (Cth), s 36(2)(a).

    [41]Migration Act 1958 (Cth), s 36(2)(aa).

    [42]Migration Act 1958 (Cth), s 36(2A).

11. Significant harm is defined within section 36(2A) of the Act as the person will be arbitrarily deprived of their life; the death penalty will be carried out on them; they would be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment. Section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that he will suffer significant harm if returned to Indonesia. The Courts have adopted the principle that test for ‘real risk’ test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[43]

    [43]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

12. Real chance was also discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[44] The question of ‘real chance’ is the test to be applied on an application for a protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[45] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[46]

    [44]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.

    [45]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.

    [46]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

13. When very careful consideration is applied to the claims made by the applicant, the Tribunal has already express a finding that his claims are so vague in nature that they are not credible claims and they should be discounted and given no weight. When considering the alternative criteria, the Tribunal adopts those same findings and considers that there are no 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 that he will suffer significant harm. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[47] Therefore, the Tribunal is satisfied (and so finds) there is taken not to be a real risk that the applicant will suffer significant harm and he is not a person in respect of whom Australia has protection obligations as provided in s36(2)(aa) of the Act.

    [47]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

    CONCLUSION: REFUGEE CRITERION

14. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.

    CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

15. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Indonesia, he will be exposed to a real risk of suffering significant harm.

    OVERALL CONCLUSION

16. 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 section 36(2)(a) of the Act.

17. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

18. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Wayne Pennell
    Senior 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.

    …