1829590 (Refugee)

1829590 (Refugee) [2024] AATA 2325 (5 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1829590

COUNTRY OF REFERENCE: Indonesia
MEMBER:Sheridan Aster
DATE:5 June 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 June 2024 at 1:46pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – victim of loan shark – physical assault – fear of killing – financial abuse – state protection – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old woman of Hindu faith from Bali, Indonesia. The applicant has two children, aged [ages] at the date of the hearing. The children live with their father in [Town 1], Bali.
The applicant arrived in Australia [in] March 2018 on a [Tourist] visa. She applied for protection on 26 March 2018, claiming she left Indonesia to run from a debt collector. The delegate refused to grant the visa on the basis that effective protection would be available to her from Indonesian authorities.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
CLAIMS AND EVIDENCE
Application for protection
On the application for protection form, the applicant claimed to have left Indonesia to run from a debt collector. She came from a difficult family and borrowed money due to financial hardship. Because she didn’t have a permanent job, she was unable to make regular repayments on the loan. Debt collectors would beat the applicant when she was unable to pay. The applicant said she didn’t seek help because the loan shark would bribe the authorities. She didn’t move to another part of the country because the debt collector would keep looking for her and harm her family. The loan shark threatened to kill the applicant.
The applicant did not participate in an interview with the delegate. The delegate refused to grant the visa on the basis that effective protection would be available to her from Indonesian authorities.
Application for review
The applicant applied to the Tribunal for merits review of the decision to refuse her a protection visa. No additional documentary evidence was provided with the application for review.
On 31 January 2024, the Tribunal requested that the applicant complete a Pre-hearing information form. On 26 March 2024, the applicant returned the completed form. The applicant provided new information in respect to her claims for protection. She outlined that she was afraid to return to Indonesia because she was abused by her in-laws. When she married her husband, she moved in with her in-laws. They made her do all the chores and farm jobs. All the income from the farm went to the applicant’s mother-in-law. The applicant said she was cursed and beaten by her in-laws.
The form outlined that after the applicant’s second child was [age] years old, she was allowed to work. She started working in a factory and as a maid. The applicant thought that when she started to work she could keep the income for personal use, however she was financially abused. The applicant said she was depressed. Her husband borrowed money from loan sharks and asked her to pay the debts. He even borrowed money under the applicant’s name. The money was used to renovate her mother-in-law’s home.
If she refused the commands of her in-laws, the applicant alleged that she would be hit and beaten. She tried to seek help from family and friends, but everybody ignored her. She tried to get help from the police, but the police officer went to her in-laws and told them she was not a good wife and went to the police to bad mouth them. They were so angry that they locked the applicant in a room and starved her for two days. After that incident the applicant did as they said. She went to work and started to secretly save some of her salary to escape with the help of an agent. Once she saved enough, she ran from home and came to Australia.
After she arrived in Australia, the applicant had help from someone in the community to apply for a visa. She had no idea of the purpose if the visa and was only hoping to stay and work legally. The applicant said she now understands that she applied for a protection visa and is telling her story because she really is afraid about returning to Indonesia.
The applicant appeared before the Tribunal on 4 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicant’s oral evidence will be discussed below where relevant.
The applicant listed her mother, [named], as a witness to be contacted by telephone at the hearing. I attempted to call [her mother] twice on the number provided. The calls were unanswered. I provided the applicant with additional time to provide a written statement from her mother.
On 8 April 2024, the Tribunal received an unsigned and undated statement that said:
My mother witness my hardship how bad I was treated by husband and his family. When I ran back to her home to seek for help after being beaten badly by my husband and his family.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ANALYSIS AND FINDINGS
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, I am aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, I note that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant.[1] Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Minister (or the Tribunal on review) 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.
[1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169.
I accept that the applicant is [an age]-year-old woman of Balinese ethnicity and Hindu faith. She speaks Bahasa Indonesian, Balinese, and some English. The applicant’s mother lives in [Town 1] and she has [number] siblings.
The applicant completed high school and later worked on the property owned by her in-laws in [Town 1]. Her jobs included keeping [animals], working in the [fields] and general labour. She also made traditional Balinese offerings to sell. In Australia, the applicant is employed in a [factory].
The applicant was married in 2000 to [Husband A] and the couple had two children, aged [ages] at the date of the hearing. The children live with their father in [Town 1], Bali.
The applicant said that she is no longer in a relationship with [Husband A], however they are still legally married. She said she last spoke to her ex-husband about a month or two after arriving in Australia in 2018. The conversation made her unhappy, so she changed her phone number and hasn’t spoken with him since. The applicant said she rarely speaks with her children.
For the following reasons, I do not accept that the applicant faces a real chance or risk of serious or significant harm from her ex-husband, her former in-laws, loan sharks or debt collectors.
Risk of harm from ex-husband and in-laws
When asked why she was concerned about returning to Indonesia at the hearing, the applicant said she had been hit by her father-in-law in the past and was afraid it would happen again. The applicant claimed that on one occasion her father-in-law, [named], hit her repeatedly. She guessed that it was 2005 because she recalled her son being about [age]. The applicant was unsure what motivated her father-in-law, but thought he might have been angry because there wasn’t enough food for the three of them (the applicant’s husband and his parents). The applicant said she didn’t realise her husband’s parents were there and commented that she hadn’t even eaten yet. She was still working on offerings made from green leaves from the coconut tree to sell the next day. [Her father-in-law] entered the room and picked up the offerings and hit her with them. She suffered a cut on her face, which she treated with betadine.
The next day, the applicant went to her mother’s home and complained to her [sibling]. She said her siblings didn’t want to help. The applicant stayed with her mother for one to two weeks and then her mother-in-law came to fetch her.
The applicant said that two days later she was put into a room and was not allowed to leave for two days. She was given hardly any food. Once she was let out of the room, she returned to her activities. After that incident, the behaviour of her in-laws towards her changed. The applicant said that they didn’t hit her again, but she was forced to do things like tend to the [animals] while she had stitches following the birth of her youngest child.
The applicant said she was scared to go back to Indonesia because her husband did not want the marriage to end. Last time they spoke, [Husband A] said that no matter what had happened, he would never let her go and he would never let her be happy. She expressed fear that he would locate her anywhere in Indonesia, and things would return to the way they were before.
As discussed with the applicant at the hearing, the population of Indonesia is more than 275 million people. It seems unlikely that [Husband A] would locate her amongst such a large population if she were to live in another part of Indonesia. In response, the applicant expressed the opinion that he would locate her wherever she went. As an example, she said that in approximately 2008, she went to visit her aunt in Lombok. She alleged that [Husband A] paid her aunt to tell him where she was. He showed up and said he would kill himself if the applicant did not return to [Town 1] with him. The applicant said she could not bare to see that, so she returned with him.
The applicant said that when she speaks to her children, they tell her about [Husband A’s] behaviour. She said that he is treating them the same way he treated her. The applicant said her daughter is trapped in the home and only allowed to leave to attend school. She is studying [subject]. The applicant’s son is daring to stand up for himself. The applicant expressed the opinion that if her son were put under pressure or spoken to a certain way, he would leave [Husband A’s] home.
The applicant said that she had also witnessed her father-in-law beat his cousin. She expressed the belief that [Husband A] listens to his parents and doesn’t care about her. When she thinks about what happened she cries. The applicant also expressed the opinion that in Bali, the police take the side of whoever has the most money. She said her ex-husband has more money than her.
The applicant’s evidence at the hearing was significantly different to her written evidence. In respect to her account of the abuse suffered at the hands of her in-laws I note:
·the claimed motivation for being locked away by her in-laws for two days differs. On the Pre-hearing information form the applicant said her in-laws locked her away because they were angry at her for going to the police. At the hearing, the applicant said that she was locked away by her in-laws after she travelled to stay with her mother for one to two weeks when she was assaulted.
·At the hearing, the applicant said that she was physically hit by her father-in-law on just one occasion in approximately 2005. She was unsure of his motivation for assaulting her. On the form, the applicant alleged that she would be hit and beaten if she did not follow the commands of her in-laws. The language suggests it happened on more than one occasion.
I consider these differences in respect to both the motivation for and frequency of the alleged assaults to be fundamental to the applicant’s claim. Furthermore, the applicant did not raise any concerns about her ex-husband or his family on the application for protection form. The applicant said she did not complete the application for protection form personally. A friend completed the form on her behalf. She told her friend that she had financial problems because she didn’t want to tell them about her family problems.
As discussed with the applicant at the hearing, s 423A of the Act requires the Tribunal to draw an unfavourable inference as to the credibility of the applicant’s claims or evidence where those claims or evidence were not put forward before the primary decision was made if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why. The applicant did not raise any claims in respect to her ex-husband or his family until more than six years after her application for protection was made and almost six years since it was refused by the delegate. I asked the applicant why she had not contacted the Department or the Tribunal earlier. The applicant said that she feels safe and calm, so she can talk about him [[Husband A]] now. I do not consider this to be a reasonable explanation for the delay. At the hearing, the applicant alleged that she travelled to Australia for the primary purpose of escaping the abuse of her ex-husband and his family. The introduction of new evidence and claims is not the result of new or changing circumstances. Even if the applicant had been uncomfortable sharing this information with her friend (or a member of the community as stated on the Pre-hearing information form), she had ample opportunity to contact the Department or the Tribunal to correct the claims over the following six years.
The applicant also commented that she had language difficulties because she did not speak English. I asked the applicant if she had considered calling the Department using the Translating and Interpreting Service (TIS) for advice. In response, the applicant said she had used the TIS to call about her Medicare entitlements. In the circumstances, it was open to the applicant to use the TIS (or another interpreting service) to update or correct her claims at any time over the last six years. I do not accept that she was prevented from raising claims in respect to her husband or his family because she did not speak English.
It is unclear if the applicant’s mother contributed to the drafting of the statement sent to the Tribunal on 8 April 2024 or if she was provided a copy. The statement does not provide her account of events and has no probative value.
Considering the evidence cumulatively and having regard to the applicant’s narrative, I do not find the applicant to be a credible witness. Her evidence in respect to the threat of harm from her ex-husband and his family was not put forward on the application for protection form, was inconsistent between her later written evidence and oral evidence at the hearing. I do not accept that the applicant was physically assaulted by her father-in law or her husband. I do not accept that the applicant’s family exercised coercive control over her or that she would face a real chance or risk of serious or significant harm from them in the reasonably foreseeable future.
Risk of harm from debt collectors
At the hearing, the applicant did not initially raise any concerns in respect to having debt or being threatened by loan sharks. When I asked about the issue, she gave evidence that her and her husband started borrowing money a few months after they were married. She wasn’t falling pregnant, and they had to consult a doctor. They started borrowing money from that time. She was asked to sign a loan for money to do house repairs, buy a car and look after the [animals]. The applicant said that her concerns regarding the loans were resolved. The loans were provided by the bank and were repaid last year.

As previously outlined, the applicant’s evidence at the hearing was significantly different to her written evidence. In respect to the loans, she originally claimed to have left Indonesia to escape debt collectors who would beat her when she was unable to make repayments. She then claimed her husband borrowed money from loan sharks and forced her to make repayments, including a loan in her name to renovate her mother-in-law’s house. At the hearing, she said the money for house repairs and other items had been borrowed from the bank and had since been repaid.
I highlighted that there were differences between the applicant’s oral and written evidence. In response, the applicant claimed she had been threatened and blackmailed while she still owed money. She then claimed to still owe money to one person. She couldn’t remember their name, but said they were from [a named location]. The applicant said she borrowed [amount] IDR (approximately $[amount] AUD) on a three-month term to pay the agent to arrange her travel to Australia. The applicant said that before she stopped having contact with her husband, the loan shark had been to her house in [Town 1] and told him that if the applicant came back, he would stab her with a knife.
I note that this is inconsistent with the information on the Pre-hearing information form. On the form, the applicant said she secretly saved money to travel to Australia in order to escape her husband and his family. However, at the hearing, she said she borrowed money form a loan shark to pay the agent.
On the application for protection form, the applicant expressed concern that loan sharks would harm her family. I asked if anything had happened to her family since she had been in Australia. The applicant said that the loan shark would hurt her, not her family. She said the loan shark had once threatened her son on the street, but he told the loan shark that he has no connection with his mother anymore.
The applicant said she had not made any repayments on the remaining loan. She is paying rent and sends money to help with her children’s education. As discussed with the applicant, this is not indicative behaviour of someone who fears for their life or physical safety. In response, the applicant said she was not concerned for her life because she was here in Australia. I do not consider this to be a reasonable explanation for failing to repay the loan. The applicant allegedly repaid her bank loans last year yet made no repayments to a loan shark who threatened her life. Further, her protection visa was refused by the delegate in 2018 and since that time her continued stay in Australia has not been assured.
The applicant’s evidence in respect to her loans was inherently inconsistent and I do not accept that she borrowed money from a loan shark, that she was beaten or threatened by a loan shark or that she would be harmed by a loan shark in the reasonably foreseeable future. I do not accept that the applicant would face a real chance or risk of serious or significant harm because of an outstanding debt if she returned to Indonesia.
While it might be inferred, for the sake of clarity, I do not accept that the applicant was depressed because she was mistreated by her in-laws, financially abused, or harmed or threatened by loan sharks or other debt collectors. No evidence was submitted to indicate that the applicant suffered poor mental health at the time of the hearing or that her mental health would be negatively impacted if she returned to Indonesia. I do not accept that the applicant would face a real chance or risk of serious or significant harm because of her mental health in the reasonably foreseeable future.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sheridan Aster
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 2325

5 June 2024

Key Legal Topics

Areas of Law

Immigration

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