1833107 (Refugee)

1833107 (Refugee) [2024] AATA 3875 (4 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 1833107

COUNTRY OF REFERENCE: Indonesia
MEMBER:Jennifer Ermert
DATE:4 July 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 July 2024 at 2:58pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – particular social group – victim of money lenders – threats from debt collectors – credit card debt – fear of detention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 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 22 May 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations, and on the basis that he is also not a member of the same family unit as such a person who holds a protection visa of the same class as that the applicant applied for.
The applicant appeared before the Tribunal on 17 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

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, 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 the applicant is a person in respect of whom Australia has protection obligations either because he is a refugee or a person who satisfies the complementary protection criterion, or whether he is a member of the same family unit as such a person and that person holds a protection visa of the same class as that the applicant applied for.

Identity and country of nationality

The applicant has provided a certified copy of the biodata page of his Indonesian passport to the Department in connection with his protection visa application. In the absence of evidence that the Indonesian passport a certified copy of the biodata page of which was provided to the Department is a bogus document as defined in s 5(1) of the Act, the delegate has accepted the applicant’s identity and claimed citizenship of Indonesia.
The Tribunal has considered the certified copy of the biodata page of the applicant’s Indonesian passport on his departmental file. The Tribunal has also had regard to the original of the applicant’s Indonesian passport which was sighted at the hearing and a copy of the biodata page of which was provided to the Tribunal. In the absence of information and evidence that the applicant is not the person he claims to be, the Tribunal also accepts the applicant’s identity and claimed citizenship of Indonesia.
The Tribunal finds the applicant’s country of nationality for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act is Indonesia.

Personal background and immigration history

The applicant is [an age] year old man from Indonesia. At the hearing, he gave evidence that he is the oldest in a family of [number of children]. His parents have both passed away, and his [siblings] are all in Kalimantan with whom he has contact about once a year, typically on occasions such as Eid.
The applicant divorced his wife in 2010 due to arguments which included some arguments revolving around the problem which is the subject of his protection claims. They have [an age] year old son together. The applicant is not in contact with his ex-wife, but because he is close to his son, he contacts his son by [a messaging service] about twice a week.
The applicant claimed he did a 3 year [Qualification 1] following the completion of his secondary school education. After that he started work in [specified year] with a [business 1] as the [specified position] in its [premises]. He worked continuously for that company for [number] years earning a salary of about IDR 10 million per month until his departure from Indonesia in 2018.
In addition to working for the [business 1] on weekdays, the applicant claimed he also ran two businesses on weekends which he had established in 2001. One of these was a business selling [product 1], while the other was a business selling [products 2].
The applicant explained he did not have shopfronts for these businesses. Instead he marketed his businesses through a freelance marketing/salesperson he employed (hereafter referred to as [Mr A]). When he received orders from customers, he would source the [product 1] or the [products 2] ordered by the customers from suppliers he had established relationships with, and sell the [product 1] or the goods accordingly.
The applicant claimed that before coming to Australia, he has only been to [Country 1] where he went with a friend in 2017 for less than a week. Otherwise, he has not travelled to other countries.
The applicant arrived in Australia [in] February 2018 on a Class FA Subclass 600 Tourist visa. He has not departed Australia since. On 22 May 2018, 5 days before his Tourist visa ceased, the applicant made an application for the grant of a Class XA Subclass 866 protection visa and was granted a Bridging Visa A on 7 June 2018 in association with that application.
Since arriving in Australia, the applicant has worked [at two businesses] near the [specified region] where his role is to [specified duty]. He was at the first [business] for approximately 2.5 years, whereas he has been with his current [business] for about 2 years.
The Tribunal accepts each of the above matters to be true in the absence of evidence to the contrary.

Protection claims

The applicant gave evidence at the hearing that he received assistance from a Malaysian person he knew to complete his protection visa application. The applicant told this person his story on which his protection claims are based, and the person used the information to complete the visa application form. There were also some questions which the applicant provided direct responses to. When queried by the Tribunal, the applicant stated that the person assisting him checked and confirmed the accuracy of the responses provided in the visa application form with him and that he was aware of the claims made.
The protection claims which the applicant made in his protection visa application are as follows:
·He has been blacklisted due to credit card debt to the bank and he fears that he would be declared bankrupt by the court. He could not obtain any loan from a bank to start his own business to make money and live a normal life.
·If he returned to Indonesia, his passport would be confiscated by the Immigration Department of Indonesia which would prevent him from going somewhere else to survive.
·Further, the bank would take him to court to enforce repayment of the credit card debt plus interest. He could be imprisoned if he could not pay. He could not avoid this by relocation (in Indonesia) because wherever he moved the banks and the lawyers would be able to track him down.
At the hearing, the applicant gave evidence to the effect that he borrowed IDR [amount] in 2005 from someone called [Mr B] who was very influential locally because he was involved in politics. When pressed, the applicant claimed he believes [Mr B] was affiliated with the Golkar party and he has heard from people that [Mr B] had links with many politicians and had lots of people who supported him, although he does not know what role [Mr B] had in the party nor has he ever seen [Mr B] run for an election. The applicant claimed he did not have any prior acquaintance or relationship with [Mr B]; he borrowed money from [Mr B] because he needed money for his businesses and [Mr B] was recommended to him as someone from whom he would be able to borrow money.
The applicant claimed that he had to sign a loan agreement with [Mr B] and the terms of the loan were that he had to pay 5% interest on top of the principal per month over 10 years. The applicant claimed he paid [Mr B] a minimum of IDR [amount] every month, although the actual amount paid would fluctuate from month to month depending on if he had extra money at the time; if his businesses were doing well and he had extra money then he would pay as much as IDR [larger amount].
In response to the Tribunal’s question in relation to how the repayments were facilitated, the applicant claimed that the repayments were not made by bank transfers but rather as cash payments in person, and that they were done on his behalf by [Mr A] who he trusted. There was a ledger or some sort of accounts book where each time a cash repayment was made, a signature would be inserted next to the payment record as evidence of receipt of the payment.
The applicant claimed things went well for a while until [Mr A] betrayed him in late 2009/ early 2010 when he absconded with all the money he made from his two businesses to the tune of IDR [amount]. The applicant claimed this left him with insufficient cashflow to continue operating his two businesses and unable to repay [Mr B] because his income from his main job at the [business 1] was not enough. He did not report [Mr A] to the police because it was useless, since the police would not do anything unless they were bribed. The applicant claimed he told [Mr B] what happened and tried to negotiate for an extension of the time in which to repay the outstanding amount of approximately IDR [amount], however [Mr B] did not care and effectively told the applicant that what happened was his problem and he just needed to pay back the money owed.
The Tribunal asked the applicant whether he had any evidence of the loan such as the loan agreement or the ledger/accounts book. The applicant responded he did not because [Mr A] had both documents, and when he absconded he took them with him. The Tribunal asked why [Mr A] would take these documents as they were of no utility to him, the applicant replied that [Mr A] just happened to have everything.
The Tribunal and the applicant discussed what happened subsequent to [Mr A’s] disappearance and [Mr B’s] denial of his request for payment extension. The applicant claimed that was when the intimidation and the threats from [Mr B] started. Initially two men – one from Kopassus and the other from Brimob – would wait to intercept him after dark at different locations on his way home from work and threaten him verbally. The interceptions occurred almost every night and although the man from the Kopassus was always the same one, the man from Brimob changed.
The Tribunal asked the applicant how he knew the men were from the Kopassus and the Brimob. In response, the applicant claimed the men showed him their IDs. The applicant claimed things escalated quickly after a week of verbal threats during which he was still unable to pay [Mr B]. The number of debt collectors from the Kopassus and Brimob increased from 2 to 5, and they started to threaten his life with lethal weapons like a gun and a sword which were held against his head and his body, respectively. The debt collectors also threw stones at his house whilst yelling things like “Your life is on the tip of this sword.”.
In response to questions from the Tribunal, the applicant claimed the threats continued until his departure from Indonesia to come to Australia, and that he had stayed in his home in Jakarta throughout this period. The applicant explained he did not relocate during this time because of his work and because it would have been difficult for him to find work elsewhere if he had to move. He made some online job applications without any tangible outcome because competition for employment was very high.
The applicant claimed he would die if he returned to Indonesia because he would be found by the debt collectors who have eyes everywhere. He does not believe he could avoid coming to their attention by relocating from Jakarta because he would need to find housing and employment which would not be easy. In the meantime he would probably need to stay in his house in Jakarta, and if he left the house to go out, someone might see him and the news of his return would spread quickly.

REASONS FOR THE DECISION

For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed because the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

Assessment of refugee status

To be eligible for the grant of a protection visa on the basis of being a refugee, the applicant must demonstrate that he has a well founded fear of persecution in Indonesia, and owing to that fear, is unable or unwilling to avail himself of the protection of Indonesia. This requires the Tribunal to be satisfied that the applicant faces a real chance of being seriously harmed in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group or political opinion, if he returned to Indonesia.
A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
In assessing whether the applicant faces a real chance of serious harm, it is necessary for the Tribunal to determine the credibility of his claims and evidence. The Tribunal is also conscious of the effect of s 423A of the Act, which requires the Tribunal to draw an inference unfavourable to the credibility of any claims not raised and evidence not presented before the primary decision was made, unless the applicant has a reasonable explanation for not raising the claim or presenting the evidence. In this regard, the Tribunal notes that the applicant’s claims and evidence at the hearing are quite different to the claims he raised in his protection visa application, which were that he was blacklisted due to credit card debt to the bank and that he would be taken to court and declared bankrupt and/or imprisoned if he could not repay the debt.
When the Tribunal raised the difference in the claims made and that it raised credibility concerns, the applicant stated it could be due to miscommunication because the person who helped him complete the protection visa application is a Malaysian person and he does not understand Bahasa Malaysia. The Tribunal put it to the applicant that the difference in the nature of the loan subject of the protection claims does not appear to be satisfactorily explained by miscommunication, given Bahasa Malaysia and Bahasa Indonesia are mutually intelligible, albeit different, languages. The Tribunal also indicated it was surprised that something as significant as the claimed physical threats to his life were not included in the protection visa application.
In response, the applicant stated his Malaysian assistant may not have gone into details of his claims when completing the visa application. The applicant claimed he did have credit card debts because he tried to withdraw money on his credit card to repay his loan but he was limited in how much he could withdraw, and that perhaps his Malaysian assistant misrepresented what happened in the protection visa application because things got lost in translation.
The Tribunal has considered the applicant’s explanation with respect to possible miscommunication due to his reliance on a Malaysian person who speaks Bahasa Malaysia rather than Bahasa Indonesia. Open source information indicates that while Bahasa Malaysia and Bahasa Indonesia are for the most part mutually intelligible due to their shared linguistic origin, significant differences exist in the vocabulary, spelling and pronunciation, and there are even identical words which have different meanings.[1] Accordingly, it is conceivable that material aspects of the applicant’s claims may have been lost in translation and misrepresented by the Malaysian person who assisted the applicant as a consequence, despite attempts made to verify the accuracy of the information provided.
[1] Chee Seng, ‘Malaysian vs Indonesian – divided by a common tongue?’, Omniglot; Safiah Kader, ‘Malay and Indonesian – 4 Big Differences’, Ling, 13 February 2023.

For this reason, and on the basis that the general tenet of the claims in both the visa application and at hearing relates to debt, and that it is conceivable that the applicant attempted to use credit card withdrawals to repay his loan from [Mr B], the Tribunal is prepared to give the applicant the benefit of the doubt and find that s 423A of the Act does not apply.
Nevertheless, and despite disregarding s 423A of the Act, there remain significant credibility concerns with respect to the applicant’s claims and evidence at the hearing. For instance, the Tribunal does not accept the claim that the person who the applicant purportedly borrowed money from, [Mr B], was involved in politics and that he was influential locally for that reason. The applicant believes [Mr B] was affiliated with the Golkar party without providing any substantial basis for that belief. He does not know what role [Mr B] had in the party; he has never seen [Mr B] run for an election; and he has merely heard from other people that [Mr B] had links with many politicians and had many supporters. On the basis of this evidence alone, the Tribunal is not satisfied that [Mr B] had the kind of profile that the applicant claimed he had.
The Tribunal also finds the applicant’s claim that his once-trusted business associate [Mr A] took both the loan agreement and the ledger/accounts book used to record the loan repayments with him when he absconded to be implausible, and the Tribunal does not accept the applicant’s explanation that [Mr A] ‘just happened to have everything’. Firstly and as the Tribunal put to the applicant, there was no reason for [Mr A] to have taken those documents which were of no particular utility to him and which might even incriminate him if his absconding was reported and investigated. Secondly, even if [Mr A’s] possession of the ledger/accounts book is justified as he had been trusted by the applicant to deliver the monthly cash repayment of the loan to [Mr B] or his associate, there was no rational explanation for [Mr A’s] possession of the loan agreement itself. Therefore, whilst the lack of evidence of the loan is not dispositive, when it is combined with the applicant’s inability to provide a plausible reason for the lack of evidence, it causes the Tribunal to wonder whether there was in fact such as loan as claimed.
More importantly, the Tribunal does not accept the applicant’s claims and evidence with respect to what happened after [Mr A] absconded causing him to be unable to repay the outstanding loan to [Mr B]. The Tribunal does not accept that the men [Mr B] sent as his debt collectors to threaten the applicant were from Kopassus and Brimob. According to open source information, Kopassus is the Indonesian Army’s Special Force Command which conducts special operations for the Indonesian government in unconventional warfare, sabotage, counter-insurgency, counter-terrorism, intelligence-gathering and special reconnaissance, whilst Brimob is the special operations, paramilitary, and tactical unit of the Indonesian National Police whose main duties include counter-terrorism, riot control, high-risk law enforcement, hostage rescue and bomb disposal operations.[2]
[2] Kopassus – Army Special Force Command, ARRSEPedia, 14 April 2012; Background on Kopassus and Brimob, ETAN.org; David Lipson, ‘Brimob: the elite paramilitary on guard for Indonesia’s “most dangerous terrorist”’, 22 July 2018, Australian Broadcasting Corporation.
Given their special roles and functions, the Tribunal does not accept that members of Kopassus and Brimob would or could be used by someone like [Mr B], who the Tribunal does not accept had a high political profile, as his personal debt collectors. The Tribunal does not accept the applicant’s claim when questioned that it is common in Indonesia for people of influence to use members of special forces for their own purposes. The Tribunal also finds the applicant’s claim that he knew the debt collectors were members of Kopassus or Brimob because they showed him their IDs to be implausible. If the debt collectors were Kopassus or Brimob members who were being used for unofficial and unauthorised purposes such as personal debt collection, one would expect them to keep their identities secret so as not to bring their units into disrepute.
Moreover, the Tribunal has great difficulty accepting the applicant’s evidence that despite an escalation in the threats directed towards him by the alleged Kopassus and Brimob debt collectors, from verbal threats to serious physical threats with a gun and a sword, the applicant remained in Jakarta and made no attempts to relocate or escape for 8 years until his departure to come to Australia in 2018. The Tribunal does not accept the applicant’s explanation that he remained in Jakarta because of his work and that if he had to move it would be difficult for him to find work elsewhere. If the applicant was genuinely in fear of his life, it is inconceivable why he endured the serious physical threats, which by his own account occurred almost daily, for 8 years, or why difficulties in finding work elsewhere would act as a barrier to fleeing for his life.
Owing to the concerns discussed above, the Tribunal is not satisfied that the claims and evidence advanced by the applicant at the hearing are credible and the Tribunal rejects them accordingly. The Tribunal does not accept there was such a politically influential person known as [Mr B] in Jakarta from whom the applicant borrowed money, or that he was verbally and then physically threatened by debt collectors constituted by members of Kopassus and Brimob. Therefore, it follows that the Tribunal is not satisfied there is a real chance that the applicant would be seriously harmed due to his inability to repay the alleged loan if he returned to Indonesia.
For completeness the Tribunal has also considered the claims from the applicant’s protection visa application with respect to the credit card debt, which the applicant explained at the hearing related to his withdrawal of money using his credit card in order to repay [Mr B]. Given the Tribunal has rejected the claims with respect to the loan from [Mr B], the Tribunal also rejects the claim that the applicant incurred credit card debt because of withdrawals in order to repay [Mr B].
As for whether the applicant otherwise faces a real chance of serious harm because of the credit card debt (which could also have been incurred for reasons unrelated to loan repayment to [Mr B] that the Tribunal has rejected), in the absence of substantive and plausible supporting evidence, the Tribunal does not accept that he has been blacklisted by the bank. The Tribunal does not accept that he would come to the attention of the Indonesian immigration authorities on return and have his passport confiscated, given he was able to depart Indonesia. The Tribunal also does not accept that the applicant would be taken to court by the bank and be declared bankrupt and/or sentenced to imprisonment.
In conclusion, the Tribunal has considered the applicant’s claims individually and cumulatively, and it is not satisfied the applicant faces a real chance of serious harm on return to Indonesia because of his alleged loan from [Mr B] or his credit card debt, now or in the reasonably foreseeable future. As someone who does not have a well-founded fear of persecution in Indonesia and who does not meet the definition of refugee, the applicant is not a person in respect of whom Australia has protection obligations pursuant to the requirement of s 36(2)(a) of the Act.

Complementary protection assessment

Having found the applicant does not meet the requirement of s 36(2)(a) because he is not a refugee, the Tribunal must now proceed to consider whether his circumstances are such as to give the Tribunal substantial grounds to believe that if he was removed from Australia to Indonesia, there is a real risk he would suffer significant harm as a necessary and foreseeable consequence of that removal.
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).

Just as the Tribunal has found there is not a real chance the applicant would suffer serious harm in Indonesia because his claimed fear of harm is not supported by credible evidence, the Tribunal finds the lack of credible evidence gives the Tribunal no substantive grounds to believe that he faces a real risk of significant harm as a necessary and foreseeable consequence of being removed to Indonesia.
Accordingly, the Tribunal finds the applicant is also not a person in respect of whom Australia has protection obligations because of the complementary protection criterion in s 36(2)(aa) of the Act.

Other criteria – member of family unit

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

DECISION

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

Jennifer Ermert
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

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

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

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

(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

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

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

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

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H Meaning of refugee

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

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.
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.
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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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 3875

4 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction