1828882 (Refugee)

1828882 (Refugee) [2024] AATA 3228 (27 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:  1828882 and 1828816
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Sophie Manera
DATE:27 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants a protection visa.

Statement made on 27 May 2024 at 9:54am

CATCHWORDS
REFUGEE – protection visa – Indonesia – religion – Christianity – discrimination and violence by Muslims – political opinion – bureaucracy, corruption and human rights abuses – combined review of separate applications – applications prepared by friend without applicants’ knowledge of contents – applicants in fact Hindu and religious and political claims abandoned – economic hardship – house and land used as security for brother’s loan for father’s medical treatment – first applicant’s father died and applicants working in Australia to repay loans – possibility of default if unable to work, but no claims of harm or fear of harm relating to repayment – work experience and capacity to earn livelihood – credible evidence – young child born in Australia after visa refusal decision not included in review application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (4)(b), (5), 36(2)(a), (aa), (2A)(d), 65, 412
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362

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
BACKGROUND

The first named applicant is a [Age]-year-old woman. She is a citizen of Indonesia. She last arrived in Australia [in] December 2017. The second named applicant is her [Age]‑year‑old partner (together, the applicants). He last arrived in Australia [in] December 2017.
On 19 April 2018 the applicants each applied separately for a protection visa. In their respective applications, the applicants each made their own identical claims for protection on the basis of their religion, Christianity. They claimed to have decided to leave Indonesia because of corruption and because there was violence and discrimination between Muslims and Christians. They also feared harm because of human rights abuses by the Indonesian government and a lack of freedom of speech. They feared they may be falsely accused of crimes and imprisoned. They also claimed that they faced discrimination in relation to finding work as they are Christians. Their protection visa application forms both said they had been victims of mugging in Indonesia.
On 10 September 2018 the same delegate of the Minister for Home Affairs refused to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and are not members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicants (s 36(2)(b) and s 36(2)(c) of the Act).
This is a combined review of those decisions made by the Administrative Appeals Tribunal (the Tribunal). The first named applicant applied for review on 3 October 2018. The second named applicant applied for review on 2 October 2018. The Tribunal finds that the applicants have made valid applications for review under s 412 of the Act. The applicants each provided a copy of their respective decision records to the Tribunal.
On 1 February 2024 each applicant provided a completed pre-hearing information form to the Tribunal, in which they referred to various religious conflicts in Indonesia. Each pre‑hearing information form also stated ‘Along with that we facing Bureaucracy on term of social life and economic [sic]’. The applicants requested a combined hearing. They have consented to a combined decision.
The applicants appeared before the Tribunal on 3 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
At the end of the hearing the Tribunal adjourned the review to allow the applicants a period of 2 weeks to submit any further documents to support their application. To date, the Tribunal has not received any further documents from the applicants.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
Under s 5J(4)(b), the persecution must involve serious harm to the person. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether at least one of the applicants is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
In their respective applications for a protection visa, the applicants claim to be citizens of Indonesia, both born in Bali.
The applicants each provided a scanned colour copy of their passport biodata page in support of their protection visa applications. Each document states the issuing authority is Denpasar.
There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicants, the Tribunal finds that they are citizens of Indonesia, and as such their protection claims will be assessed against Indonesia as the country of reference and ‘receiving country’ respectively.
Analysis findings and reasons
Credibility
Overall, the Tribunal finds the applicants were credible witnesses. The Tribunal took oral evidence from each applicant separately, and notes that their evidence was substantially consistent. The Tribunal noted at the start of the hearing that each applicant made an oath on the Gita, a Hindu holy book. The Tribunal asked each applicant their religion, to which they confirmed they are Hindu. The Tribunal then put to the applicants that the claims for protection in their written protection visa application forms relate to fears of persecution due to their Christian faith. Each applicant confirmed this was incorrect and they have never been Christians. They were not aware their forms contained this claim. Each applicant confirmed that a friend of a friend prepared the protection visa application forms, and they did not know what had been written in them. The Tribunal accepts the applicants’ evidence that they did not prepare the application forms themselves and did not know the contents. The Tribunal finds that the person who prepared these forms on behalf of the applicants inserted incorrect information and false claims for protection. The Tribunal understands that the applicants relied on this person to complete their forms as the applicants have limited English, and the applicants were unaware that incorrect and false claims had been made on their behalf. The Tribunal makes no adverse credibility findings despite the incorrect claims provided in the protection visa application forms and the pre-hearing information forms.
Religious claims
The Tribunal asked each applicant whether they had any fears relating to their religion, to which they both responded no. Each applicant confirmed that they wished to abandon the religious claims contained in their protection visa application form. On the applicants’ evidence, the Tribunal finds that the applicants do not face a real chance of serious harm for reasons relating to religion. The Tribunal finds that the claims contained in the protection visa application forms are false and do not represent the real reasons why the applicants do not wish to return to Indonesia.
Bureaucracy and corruption claims
On the applicants’ evidence, the Tribunal also finds that the applicants do not face a real chance of serious harm from the Indonesian authorities, or arising from corruption, or arising from the bureaucracy. In their oral evidence, the applicants did not raise any problems or issues arising from the Indonesian authorities, corruption, or bureaucracy. While their protection visa application forms claimed they were attacked and mugged in Indonesia and the police did nothing to assist, the Tribunal finds this allegation is untrue as the applicants did not raise it in their oral evidence, and the applicants confirmed that they did not prepare the contents of their protection visa application forms and did not know what information or claims the forms and supporting documents contained. The Tribunal also finds that the claim contained in the pre-hearing information form that they face issues from bureaucracy affecting their social life and economic status to be incorrect and untrue, and does not represent the real reasons why the applicants do not wish to return to Indonesia. Again, this claim was not raised by the applicants during the hearing. They did not claim that their concerns arose due to bad bureaucracy.
Claims regarding economic hardship and loan repayment
Each applicant confirmed during the hearing that they feared harm upon return to Indonesia for economic reasons. They each explained that the first named applicant’s father had been diagnosed with cancer and required expensive treatment including chemotherapy and blood transfusions. To pay for the medical treatment, the first named applicant’s older brother took out a loan in his name from a cooperative of which he was a member. He had access to a low interest rate loan. To secure the loan, the second named applicant agreed to use his family house and land as security. The applicants said that if the loan repayments are not met, they risk the cooperative taking the second named applicant’s land and selling it to repay the loan. Sadly, the first named applicant’s father passed away. The applicants decided to travel to Australia in order to find work to repay the loan. The applicants are currently repaying the loan. They send money to the first named applicant’s older brother, who makes repayments. The second named applicant said that he also has a bank loan in his name, for a much smaller amount. He is currently paying off his loan. He was not required to put up any property as a security for his bank loan.
The second named applicant said that if they could not remain in Australia to work and send money back, they would default on the loan repayments and would lose his family home. He said that in Indonesia, he would not earn sufficient money to pay for their living expenses and also make loan repayments. The second named applicant explained that his family land has a special spiritual significance. The land has been in his family for generations. When the second named applicant inherited the land from his father, he had effectively made a promise to his ancestors to look after the land. The land is sacred and he has a responsibility to protect it. The second named applicant said that while he owns part of the land and his uncle owns another part, as there is only one land title certificate, if the land is taken by the cooperative to repay the debt, his uncle will also lose his land and home.
The applicants confirmed they did not live in the house on the second named applicant’s land immediately prior to travelling to Australia. Prior to arriving in Australia, the second named applicant said that they rented accommodation in Denpasar. The applicants do not currently rent out the house on the second named applicant’s land. The second named applicant’s uncle, who lives in an adjacent house, maintains the second named applicant’s house and land.
In relation to what they would do if returned to Indonesia, the first named applicant said that she and her family would have to move into her family home, where her mother and older brother currently live. The second named applicant said that he hopes they can stay in Australia to pay off their debts and not be a burden to their families.
The Tribunal notes that the applicants’ claims relate to economic harm, namely they fear they will lose the second named applicant’s family land if they cannot continue making payments towards the loan. The Tribunal accepts this claim, as it was raised separately and consistently by each applicant while giving oral evidence. The applicants do not fear harm from a specific person or group, and they have not raised any fears of physical or psychological harm as a result of defaulting on the loan repayments. The applicants do not fear harm from any of their relatives. The first named applicant said that when she first entered into a relationship with the second named applicant, her older brother did not accept it as the second named applicant comes from a poor background. However, she said this issue was resolved before the applicants travelled to Australia. Once the applicants decided to travel to Australia, the first named applicant’s older brother decided to accept the relationship as he would receive some financial support from them. The first named applicant also said that now that she has a child with her partner, her family accepts him. Both applicants gave evidence that they are in contact with their family members in Indonesia.
The Tribunal informed the applicants that in order to be entitled to a protection visa, they must face a real chance of serious harm in Indonesia, or there must be substantial grounds for believing that as a necessary and foreseeable consequence of removal to Indonesia, there is a real risk they will suffer significant harm. The Tribunal provided examples of serious harm and significant harm to the applicants. The Tribunal explained to the applicants that considering they had family support in Indonesia, and they had previously worked in Indonesia, the loss of the second named applicant’s family land may not amount to serious harm or significant harm. The Tribunal acknowledged the significance of this land under their religion, but informed the applicants that losing the land may not entitle them to protection in Australia. The second named applicant said that he did not know what would happen if he were to lose the family land.
The Tribunal finds that the applicants do not face a real chance of serious harm in the reasonably foreseeable future if returned to Indonesia. The applicants confirmed during the hearing that the substance of their fear upon return to Indonesia was economic hardship, which may result in the loss of the second named applicant’s family land. The Tribunal accepts that the applicants face losing the second named applicant’s family land if they cannot earn enough money to repay the loan to the cooperative, however the Tribunal does not find this amounts to serious harm as defined in s 5J(5) for the purposes of s 5J(4)(b). The Tribunal is also not satisfied that this amounts to at least the same level of harm as any of the types of harm outlined in s 5J(5). The land is not at risk of being seized unjustly or unlawfully, rather the applicants face losing the land as it was used as security for the first named applicant’s brother’s loan. The land does not provide the livelihood of the applicants. They did not live on the land immediately prior to entering Australia. The Tribunal is not satisfied that the loss of the family land to repay the debt would result in significant economic hardship that threatens the applicants’ capacity to subsist. The Tribunal acknowledges that if the applicants returned to Indonesia, they would earn a lower salary than what they currently earn in Australia. However, considering the applicants have previously worked in Indonesia – on their evidence the first named applicant has substantial experience as [an occupation 1] and the second named applicant has experience as [an occupation 2] and in the [work sector] – the Tribunal finds the applicants would find employment upon return to Indonesia. The Tribunal also finds that, on the evidence of the first named applicant, the applicants could stay with her family until they are able to re-establish themselves and find employment in Indonesia. If returned to Indonesia in the reasonably foreseeable future, the Tribunal is not satisfied that the applicants would be denied the capacity to earn a livelihood where the denial threatens their capacity to subsist.

The applicants have not claimed they would face a threat to their life or liberty, significant physical harassment, significant physical ill-treatment, denial of access to basic services, or any other kind of physical or psychological harm. For the above reasons, the Tribunal is not satisfied that the applicants face a real chance of serious harm amounting to persecution if returned to Indonesia in the reasonably foreseeable future.
Claim regarding the applicants’ daughter’s education
Both applicants told the Tribunal that they had a [Age]-year-old daughter who was born in Australia, and who they wished could be educated in Australia. The applicants’ daughter was born after the delegate of the Minister for Home Affairs had decided to refuse the applicants’ protection visa applications, and the applicants’ daughter is not included in this application for review. In any case, the Tribunal put to the applicants that their daughter would be able to receive an education in Indonesia, and so this may not be a basis upon which they would be entitled to protection in Australia. The applicants did not have any specific comment in regards to this. There is no evidence before the Tribunal that the failure of the applicants’ daughter to be educated in Australia would put the applicants at risk of any harm at all. The Tribunal finds that the applicants simply desire their daughter to have the benefit of an Australian education, however they do not fear persecution if she is denied this. The Tribunal finds the applicants do not face a real chance of serious harm arising from their daughter’s inability to be educated in Australia.
For the reasons given above, and having considered the applicants’ claims individually and cumulatively, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants’ removal from Australia to Indonesia, there is a real risk they will suffer significant harm. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act.
‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
‘Degrading treatment or punishment’ is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
The Tribunal is not satisfied the applicants face a real risk they will suffer one of the 5 types of harm that are ‘significant harm’ under s 36(2A) of the Act if returned to Indonesia. The applicants have not claimed that they will be arbitrarily deprived of their life, or the death penalty will be carried out on them, or they will be subjected to torture. The Tribunal is not satisfied that the loss of the second named applicant’s family land, nor the denial of their daughter to be educated in Australia, constitutes cruel or inhuman treatment or punishment or degrading treatment or punishment. While the land has spiritual significance to the second named applicant and he would undoubtedly be significantly distressed to lose it, the loss of the land is not the result of intentionally inflicted pain or suffering by any person or group. Furthermore, there is no intention by any person or group to cause extreme humiliation to the applicants. Rather, the loss of the land may be the consequence if the applicants are unable to continue repaying the loan to the cooperative. The Tribunal also finds that the applicants’ daughter’s inability to be educated in Australia is not intentionally inflicted treatment or punishment, rather it is simply the consequence of the family being removed from Australia.
In relation to the applicants’ written claims regarding fearing harm due to their religion, or arising from corruption or bureaucracy, the Tribunal has found above that the applicants do not face a real chance of serious harm. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act. On the basis of the findings above, and for the same reasons as referred to above, the Tribunal is not satisfied that the applicants will be the subject of adverse attention or harm of any kind in Indonesia because of their religion, or arising from corruption or bureaucracy.
The applicants did not claim to fear harm for any other reason. The Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
There is no suggestion that the applicants satisfy s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decisions not to grant the applicants a protection visa.
Sophie Manera
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 3228

27 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction