1831991 (Refugee)

1831991 (Refugee) [2024] AATA 4273 (20 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1831991

COUNTRY OF REFERENCE: Indonesia
MEMBER:Kylie Allen
DATE:20 June 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 June 2024 at 10:17am
CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – victim of family violence – race – ethnic Chinese – physical assault – employment – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 5 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Indonesia, applied for the visa on 28 September 2016. The delegate refused to grant the visa on the basis that the applicant was not owed protection.
The applicant appeared before the Tribunal on 13 June 2024 to give evidence and present arguments in relation to her claims.
INFORMATION BEFORE THE TRIBUNAL
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal has also taken into account material provided by the applicant to the Department and the Tribunal as well as material provided by the Department to the Tribunal. The key information is summarised below.
Protection visa application
On 28 September 2016, the applicant applied for a protection visa. In that protection application her claims included the following:
·     She was born in Jakarta in [specified year] and she is a Chinese Indonesian Christian. Her daughter and mother continue to live in Jakarta.
·     She would like to apply for a protection visa in order to avoid a risk of being harmed by her ex-husband, ‘[Mr A]’.
·     At the beginning of 2008 they found out she was pregnant with their daughter and they married [in] May 2008.
·     [Mr A] was violent towards her and kicked her in the stomach when she was pregnant and beat her up after the baby was born.
·     In August 2011 he beat her up again and she left him and went to her [Relative A’s] house.
·     From there she went to a clinic and got a report on her injuries and then she went to the police office at [Town 1], west of Jakarta to make a report against her husband.
·     She heard that the police station sent him a letter but in the end they let him go because his family paid them a bribe.
·     After they separated she returned to live at her mother’s house. [Mr A] came to the house to try and take their daughter but her family and neighbours helped her.
·     After she arrived in Australia, she heard that [Mr A] came to try and see their daughter a couple times and he was rude to her mother.
·     [Mr A] told her mother he would kill her if he found her.
Protection visa interview and decision
On 13 September 2018, the applicant attended a protection visa interview with the delegate to discuss her claims. At that interview, her evidence included the following:
·     She was in a violent relationship with [Mr A] between 2005 and 2011.
·     They were never officially married but had a ‘ceremony’ and a celebration at a restaurant. There is no official paperwork regarding the relationship.
·     She fled to Australia, as she feared he was going to harm her.
·     He recently came to her mother’s house to give their daughter a small amount of cash for her birthday. He brought his wife and [child] with him. She believes that this visit was the first in a long time and she texted him requesting that he not return and he became abusive. She blocked his number.
·     [Mr A’s] sister requested to take her daughter out for the day, and she declined to allow it, as she feared her daughter would be taken. [Mr A's] sister respected her wishes and nothing further came of that.
·     Since she has been in Australia, her family have informed her that [Mr A] has sometimes stood in front of her mother’s home and called the applicant derogatory names stating that she had sold herself to come to Australia.
·     In the future she fears he may create conflict and that something bad could happen as he is a bad person.
·     She fears returning to Indonesia, as it is unsafe, there is a lot of crime and it can be difficult to find employment there.
·     She also fears returning as she is Chinese Indonesian and they suffer from racism.
On 5 October 2018, a delegate of the Minister made a decision to refuse the grant of visa on the basis that the applicant was not owed protection.
Application to Tribunal
On 31 October 2018, the applicant lodged an application for a review of the decision with the Tribunal.
Hearing
The applicant attending a hearing before the Tribunal on 13 May 2024 to give evidence and present arguments in relation to her claims. Where relevant, the applicant’s oral evidence at the hearing is referred to in my analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
REFUGEE ASSESSMENT
Section 5H(1) of the Act provides that a person is a refugee if, in a case where the person has a nationality, he or she 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 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.
Under s.5J of the Act ‘well-founded fear of persecution’ involves a number of components which include that:
·     the person fears persecution and there is a real chance that the person would be persecuted
·     the real chance of persecution relates to all areas of the receiving country
·     the persecution involves serious harm and systematic and discriminatory conduct
·     the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion
·     the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and
·     the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.
The issue in this case is whether the applicant is owed protection as a refugee or as a person entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and identity
The applicant claims that she was born into a Chinese Indonesian family in Jakarta in Indonesia in [year]. She lived with her mother and daughter in [a named town]. In 2022 her mother and daughter moved to another house in the same area about 500 meters away. Her mother has a small [business]. Her parents are divorced and her father lives in another part of Jakarta. She has [siblings] who are both married and live at other addresses in Jakarta. She attended university to study [subject] and then worked in various jobs [specified]. In support of her claimed identity, the applicant provided a copy of her Indonesian passport which was issued in 2012. The Tribunal is satisfied that the applicant’s identity is as claimed and accepts that she is a national of Indonesia and that she is of Chinese ethnicity. The applicant’s family all live in Jakarta and I consider that this is the area she would likely return to if returned to Indonesia.
Protection claims
The applicant’s main claim is that she fears harm from her former partner [Mr A] due to domestic violence. This appears to be personal dispute that commenced when she got pregnant and continued until she left him in 2011. A refugee is a person who has 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. The applicant has not claimed that [Mr A] has harmed her or that she fears harm from him because of her race, religion, nationality, membership of a particular social group or political opinion. I have therefore had regard to this claim under Complementary Protection.
At hearing the applicant was asked if she feared harm in Indonesia on any other basis such as a one of the grounds listed in s 5J of the Act. She indicated that she did not. Later in the hearing, I raised that she had said in her protection visa interview that she fears returning to Indonesia as it is unsafe, there is a lot of crime and it can be difficult to find employment there. The applicant stated that she did not fear harm on the basis of crime or unemployment in Indonesia. She did not indicate that she feared for her safety and security for reasons of her race, religion, nationality, political opinion or as a member of particular social group. I have therefore had regard to these claims under Complementary Protection.
It was raised with the applicant that in her protection visa interview she said that she fears returning to Indonesia as a Chinese Indonesian as they suffer from racism. The applicant stated that she did experience some racism, in particular on public transport Indonesians might look at them weirdly. The applicant was asked if she felt unsafe on public transport and she responded that her mother said it is okay now. The Chinese people have some trauma after the events of 1998 but that is resolved and her mother and daughter have not been harmed. DFAT reports[1] that the 1997 Asian Financial Crisis led to high inflation, unemployment and bank and company collapses in Indonesia. Riots and looting occurred, particularly targeting the Chinese-Indonesian community. Suharto resigned as President in May 1998, ending the New Order era. Several serious incidents of communal violence (both ethnic and religious-based) also occurred across the archipelago. In this context I accept that Chinese Indonesians do carry some trauma as a result of the events of 1998.
[1] DFAT, “DFAT Country Information Report Indonesia”, 24 July 2023
DFAT reports that the situation for Chinese Indonesians improved significantly after 1998. Successive governments have removed official policy discriminating against ethnic Chinese Indonesians. The government promotes racial tolerance, and legislation prohibiting racial discrimination and vilification has been in force since 2008. Chinese New Year is a national public holiday, Chinese-language newspapers are published, and there are no barriers to Chinese cultural celebrations or education. DFAT states that low-level ethnic discrimination, like stereotypes and the use of racist slurs, occurs in Indonesia and that non-Javanese are worse affected, but ethnic chauvinism occurs among members of all ethnic groups.
DFAT states that Chinese Indonesians experience societal discrimination in the form of negative stereotypes that portray them as greedy and additionally as criminals or as being associated with China and its policies. In DFAT’s assessment, risk of societal discrimination against Chinese Indonesians depends on individual circumstances. DFAT states that violence has occurred in the past but is not an everyday experience for Chinese Indonesians. Overall, DFAT assesses that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT is not aware of official discrimination against Chinese Indonesians. The applicant advised at hearing that her family have accommodation in Indonesia, she did not state that they had been discriminated against on that basis. She also advised that she was able to access university and she was able to find employment. She does not appear to have been discriminated against on that basis. When asked for examples of the racism she experienced she advised that people used to look at her weirdly on public transport. I accept that the applicant faced some low level societal discrimination on the basis of her race and that this occurred on public transport as described.
Overall, the Tribunal accepts that when she lived in Indonesia, the applicant experienced some racism on public transport. The Tribunal notes her comments that according to her mother, this has now improved. At hearing, the applicant did not indicate that she fears harm on her return to Indonesia on the basis of her ethnicity and, given the country information about the steady improvement in conditions for Indonesians of Chinese ethnicity combined with the applicant’s own evidence about the treatment of her mother, I am satisfied that the applicant does not face a real chance of harm on the basis of her race or ethnicity on her return to Indonesia.
The Tribunal has considered all of the applicant’s circumstances and is not satisfied that if the applicant were to return to Indonesia she would face a real chance of any harm on the basis of her race, religion, nationality, membership of a particular social group or political opinion now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Refugee: conclusion
The applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a). The applicant does not face a real chance of persecution.
COMPLEMENTARY PROTECTION ASSESSMENT
A criterion for a protection visa is that the applicant is a non-citizen in Australia (other than a person who is a refugee) in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.
Under s.36(2A), a person will suffer ‘significant harm’ if:
·     the person will be arbitrarily deprived of his or her life
·     the death penalty will be carried out on the person
·     the person will be subjected to torture
·     the person will be subjected to cruel or inhuman treatment or punishment, or
·     the person will be subjected to degrading treatment or punishment.
The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are in turn defined in s.5(1) of the Act.
In her protection visa application the applicant claimed that she would like to apply for a protection visa in order to avoid a risk of being harmed by her ex-husband, [Mr A]. She claimed that she was abused by him from 2008 when she became pregnant and 2011 when she left him. At hearing she recounted her claims in a manner which accorded with the protection visa application. She said that her ex was abusive towards her and beat her even when she was pregnant. She said that they met in around 2004 when they were at university together but he only became aggressive later on because he did not want the baby. She said the relationship came to an end in 2011 when he beat her badly and she was able to get away to her [Relative A’s] place. She could not recall the date when this occurred and she had no records from the clinic she attended or from the police station. She had some pictures of the bruises but these have gone as they were on an old mobile phone that she lost. While I have some concerns about the lack of corroboration of the relationship and harm, I do accept, based on the applicant’s compelling oral evidence, that she was in a de facto relationship and faced domestic violence from her ex-partner between 2008 and 2011 as described.
The applicant was asked at hearing if [Mr A] ever harmed her again after she left him in 2011 and she said no, in fact she had no contact at all with him. She moved back in with her mother and worked as [an occupation 1] before making a decision to travel to Australia to find work and save money. She did say that in 2012 after she had left, he came to her mother’s house and was yelling. The police could not help her mother as it was only yelling and there was no actual harm. She also said that there was another incident when he came with his girlfriend to get their daughter and during that visit he pushed the applicant’s mother. The applicant said that her brother was there and he hit her ex-partner with a knife. Her brother got a letter from the police afterwards that but nothing came of that. She also said that his mother came to visit her mother over one Christmas and she spoke badly about her to her mother saying that she did not love her daughter as she left her in Indonesia. I accept that the applicant has had no contact with her ex-partner since 2011. I also accept that he lives nearby and has tried to have intermittent contact with his daughter over the years and this has resulted in disputes with the applicant’s mother and brother. I do not accept that he has ever tried to contact the applicant or harm her since she left him.
The applicant was asked what her ex-partner was doing now. She said she did not know. She heard that he has been married 3 or 4 times now. She said he abused his second wife and took her credit card for gambling and drugs. That wife had called her seeking support. She said that wife had a child with him and she left him. She said he now has [number] children and does not support any of them. Given the incidents described above and the fact that her daughter has been able to live with her grandmother unharmed between 2011 and 2024 and is now a teenager, I do not accept that the applicant’s ex-partner has any intention to take or harm their daughter.
It was put to the applicant that it appeared that her ex-partner had moved on and despite a threat to her mother, he not contacted her since their break up in 2011. She was asked whether she thought he would harm her if she returned. She responded that she does not know, maybe or maybe not. He lives in the same area as her family and his friend is her brother’s friend. She said that her dream was to bring her daughter to Australia to have a better life. The applicant was asked what she thinks will happen to her on her return to Indonesia. She said that she does not think she will have a future there because she does not like Indonesia, life is too tense there and life in Australia is relaxed.
The applicant was asked if she could obtain protection in Indonesia from her ex-partner if required. She said they the police will not do anything as they are corrupt, they will only do something if you have money. The applicant was asked if she could live elsewhere in Indonesia to avoid harm. She responded that she does not think so because she is used to Australia. She has lived in Australia for 12 years and she does not see that she could live in Indonesia anymore as her life is in Australia.

Overall, I accept that the applicant was harmed by her ex-partner in the course of their relationship. I am not satisfied that he has any intention to harm her on her return to Indonesia. While he may have made threats during a dispute with her mother in 2012 this occurred close to the time of their break up and during a visit to his daughter. It does not appear that he has threatened the applicant directly since the break up or that he has attempted to contact her. He has had other relationships and other children between 2011 and 2024. The applicant has been in Australia for 12 years and I consider that the chance of the applicant being harmed by her ex-partner on her return to Indonesia in 2024 is no more than remote and does not rise to the level of a real risk of significant harm. I appreciate that the applicant’s life has also moved on considerably since 2011 and she has made a good life for herself in Australia and as such she has no desire to return to Indonesia. The applicant herself said she does not know what would happen when she returns to Indonesia and indicated that the primary reason she does not want to return to Indonesia is that she prefers life in Australia.
At hearing the applicant was asked about her fear of harm in Indonesia from crime or lack of employment. She responded that she does not fear harm on that basis. Additionally she indicated that her mother has a small shop. She also said that when she lived in Indonesia she worked in a range of roles [specified]. She said that her mother and daughter have not been victims of crime. She also said that in the past when she was harmed by her ex-partner she was able to make a report at a police station and they contacted her ex-partner about that matter. She did say that his family paid money to make that report go away and DFAT does indicate that corruption in the police force is endemic.
Overall, I am not satisfied that the applicant faces a real risk of significant harm due to the employment situation, safety or security or crime in Indonesia. In any case, s 36(2B) of the Act states that 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 the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. Noting that the applicant does not claim to have been targeted in relation to those concerns, the Tribunal is satisfied that matters such as the economy and employment and the security situation and crime rates are all matters faced by the population generally in Indonesia and they are not so significant that the applicant would be prevented from living there and subsisting.
Having regard to the applicant’s evidence in its totality, the Tribunal accepts that the applicant was harmed in the past by her ex-partner but is not satisfied that there is a real risk that the applicant will face significant harm from him on her return or for any other reason. The Tribunal also accepts that the applicant faced some low level societal discrimination due to her ethnicity. The Tribunal accepts that the applicant has lived in Australia for a long time and no longer sees herself as living in Indonesia. I appreciate the concerns that the applicant has as a result of these circumstances. I am not satisfied however that the conditions for the applicant on her return would, in these circumstances, constitute arbitrary deprivation of life, the death penalty or torture. Further I do not consider that there is any requisite intention on the part of the Indonesian authorities to inflict pain or suffering that could reasonably be regarded as cruel or inhuman treatment or punishment, severe pain or suffering, whether physical or mental, or cause extreme humiliation, as required in the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment in the Act.
As set out above, I have found that the applicant does not face a real chance of any harm in relation to the remainder of their claims. Real chance and real risk involve the same standard. On the same factual findings, I am similarly not satisfied that the applicant faces a real risk of suffering any harm, including significant harm, should she be returned to Indonesia.
Complementary protection: conclusion
There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no 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.
Kylie Allen

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 4273

20 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

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