2011117 (Refugee)
[2025] ARTA 779
•21 March 2025
2011117 (Refugee) [2025] ARTA 779 (21 March 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2011117
Tribunal:Senior Member Chelsea Lyford
Date:21 March 2025
Place:Perth
Decision:The Tribunal affirms the decision under review.
Senior Member Chelsea Lyford
Statement made on 21 March 2025 at 12:55pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – natural disasters, diseases, poverty and lack of shelter – family’s house and farm destroyed in earthquake/tsunami – government’s inability to supply appropriate aid and lack of general resources – late claims of participation in protest against local government and as homosexual woman – fear of harm from family and civil and religious authorities – no reasonable explanation for late claims and adverse inference drawn – working in Australia to support family – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5(1), 5H(1)(a), 5J(1)(a), (3), (4), (5), 5LA, 36(2)(a), (aa), (2A), (2B), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth [1999] HCA 14
Chan Yee Kin v MIEA (1989) 169 CLR 379
CPE15 v MIBP [2017] FCA 591
DQU16 v MHA [2021] HCA 10; 273 CLR 1
DZADC v MIAC (No 2) [2012] FMCA 778
DZADQ v MIBP [2014] FCA 754
MIAC v SZQRB [2013] FCAFC 33; 210 FCR 505
MIEA v Guo Wei Rong [1997] HCA 22
MIEA v Wu Shan Liang [1996] HCA 6
SZQZN v MIAC [2012] FMCA 939
SZRKY v MIAC [2013] FCA 352
SZSHK v MIBP [2013] FCAFC 125
SZSKC v MIBP [2014] FCCA 938
SZSTZ v MIBP [2015] FCAA 92
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
INTRODUCTION
This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (Minister) on 26 June 2020 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Migration Act).
For the following reasons, the Tribunal affirms the decision under review.
BACKGROUND
Procedural background
The Applicant is a [Age]-year-old Indonesian female who was born in [Year] in Palu, the largest city of Central Sulawesi Province in Indonesia.
[In] December 2018, the Applicant (then [Age] years old) arrived in Australia, by plane, using her Indonesian passport and as the holder of a Visitor FA-600 visa (tourist stream).
On 3 February 2019, the Applicant applied for a Protection XA-866 visa and, on 15 February 2019, the Applicant was granted a Bridging visa A (BVA), because of her protection visa application (PVA), and she remains on a BVA currently.
On 26 June 2020, the Applicant’s PVA was refused by a delegate of the Minister (Refusal Decision) and the Applicant was notified by the Department of Home Affairs (Department) of the Refusal Decision accordingly.
On 4 July 2020, the Applicant applied to the Administrative Appeals Tribunal (AAT) for review of the Refusal Decision.
The AAT was abolished on 14 October 2024 and replaced with the Administrative Review Tribunal (ART), established by the Administrative Review Tribunal Act 2024 (ART Act). The Refusal Decision automatically transferred from the AAT to the ART, for review, at the commencement of ART: Part 5 of Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.
Claims in the PVA before the delegate of the Minister
A summary of the claims made by the Applicant in her PVA, which was before the delegate of the Minister in making the Refusal Decision, is as follows:
· She left Indonesia as she was fleeing recurring natural disasters, travesties and devastation no matter where she went in Indonesia, such as “likuefaksi’s”, earthquakes and tsunamis;
· Poor health situations which resulted from these natural disasters caused the spreading of diseases for which there were no resources to contain or treat. The Indonesian government could not do anything;
· The harm she experienced in Indonesia was not only limited to traumatic experiences, such as witnessing entire villages being wiped out, but also being subjected to poverty;
· She also suffered physical harm from being left in the elements after the natural disasters as there was no shelter;
· Due to the number of people requiring help because of the natural disasters, the Indonesian government was unable to supply appropriate aid to support the people affected. The Indonesian government needed help from other countries to provide housing and to rebuild everything;
· She moved from her hometown of Palu to Bali, only to encounter another earthquake. It was then she knew that wherever she travelled in Indonesia she would be subject to such travesties;
· If she returns to Indonesia, and does manage to survive, she will be subjected to a life of poverty due to insufficient resources. She will not be able to rebuild and maintain life afterwards due to the “life sentence of poverty”. If she is lucky enough to find employment, she will have to endure “poverty pay rates”;
· If she returns to Indonesia, although no one person is likely to intentionally subject her to harm, due to the lack of government resources available to survive the elements, she is unlikely to survive the many travesties that will most definitely occur if she returns to Indonesia;
· The Indonesian government does not offer sufficient resources for general survival to its people after natural disasters; and
· Relocation within Indonesia is an option she pursued multiple times but was always greeted with the “same aftermath of destruction and despair from the rapid path of natural disasters that followed [her] around the country”: PVA at pp 18-20 and Refusal Decision at pp 1-2.
Delegate’s Refusal Decision
The Department did not invite the Applicant to attend an interview or to provide further information or documentation in support of her claims for protection. Instead, the delegate of the Minister proceeded to make the Refusal Decision based on the information and documentation on the Department’s file and relevant country information on Indonesia.
As stated above, on 26 June 2020, the delegate of the Minister made the Refusal Decision. A summary of the delegate’s findings in the Refusal Decision is as follows.
Refugee protection criterion - s 36(2)(a) of the Migration Act
The delegate of the Minister found that the Applicant’s claims do not relate to any of the refugee protection reasons in s 5J(1)(a) of the Migration Act such that the delegate was not satisfied that there is a “real chance”, that if the Applicant returned to Indonesia, she would suffer “serious harm” for one or more of those reasons.
Accordingly, the delegate was not satisfied that the Applicant is a “refugee”, as defined in s 5H(1) of the Migration Act and, it follows, was not satisfied that that the Applicant is a person in respect of whom Australia has refugee protection obligations under s 36(2)a) of the Migration Act.
Complementary protection criterion - s 36(2)(aa) of the Migration Act
The delegate found that the harm claimed by the Applicant if she is returned to Indonesia (i.e. harm from natural disasters and being subjected to poverty) is not “significant harm”, as defined in s 36(2A) of the Migration Act and that there is no “real risk” that the Applicant will suffer “significant harm” if returned to Indonesia.
Consequently, the delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Indonesia, there is a real risk the Applicant will suffer significant harm and, it follows, the Applicant is not a person in respect of whom Australia has complementary protection obligations under s 36(2)(aa) of the Migration Act.
Hearing before the Tribunal
The Applicant appeared before the Tribunal (Perth Registry) on Thursday 6 March 2025 at 9.30am (AWST), unrepresented, and gave evidence under oath. The hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
At the commencement of the hearing, the Tribunal explained, among other things, the following to the Applicant:
· why she was invited to attend the hearing and the purpose of the hearing;
· that the Tribunal is independent of the Department in making its decision on review;
· the criterion in the Migration Act for refugee and complementary protection;
· the evidence to be considered by the Tribunal;
· how concerns the Tribunal has about any of her evidence will be addressed;
· whether she could understand the interpreter and the role (and confidentiality) of the interpreter;
· the confidentiality of the hearing; and
· that she should ask the Tribunal for a break, as required.
Evidence before the Tribunal
In the Pre-hearing information form, dated 9 December 2024 (Pre-hearing Information Form), under the heading “Claims for protection” and, in response to the questions “Do you want to give any more information about your claims for protection?” and “are there any other reasons why you are afraid to return to your home country?” the Applicant stated:
Back in 2018 there are disaster happened in pau Central Sulawesi called Tsunami Earthquake and Liqufaction (sic.), and we lose everything me and my Family Member we got no House to living we just stay in Refugee camp which is very poor, air, water and food low access[s], than the local government not really help everyone to survives, so i make protest to agains[t] the government I am afraid to return to Indonesia because of my political beliefs, i have been involved in peaceful protests against the government policies particularly regarding to the freedom of reestriction (sic.) about how they manage the freedom of speech and recently changes the laws how to helping people after disaster i need to support my family to live in, the on going treath and trauma i have experiences in indonesia have taken significant toll in my mental Health. i continue to suffer from anxiety and fear for my life which is impossible for me to return to my country with out significan risk of harm both physical and psychology
Extracted, in part, below are pre-hearing written submissions, dated 4 July 2020, provided by the Applicant in support of her review application to the ART (Pre-hearing Written Submissions):
Family Background
My father was [occupation 1], he had loan in the bank during disaster happen in my home town are tsunami, liquefaction, and earthquake destroyed all the facility in there, also we don’t have house anymore my father doesn’t have money to renew our house, the government relocated us to move in camp but its hard to stay there with a thousand people limited water, sanitary, food and everything was change. A year after earthquakes and tsunami waves pummelled the city of Palu in Indonesia’s Central Sulawesi province, more than 57,000 survivors are still homeless and tens of thousands more are waiting for help to rebuild. Until now the government not building the house yet, life so hard for me when I was hear my father gonna go to in jail if he didn’t payed the loan in the bank and in other place, his income not enough to pay back the loan, bill and rebuilding the house. As we know indonesian have a million of population even we work in [occupation 1] the salary still not enough. Im the olders because I have [youngers] I need to look after my parents. Not only because of disaster was happened I had mental problem until now I have been not merry yet because I thing iam lesbian which is mean I don’t like man, I couldn’t said the truth. My parents will feel shamed because we are muslim we supposed to follow the rule, how can be I make another problem again in the other hand in indonesia we not allow to have same partner That’s the first things why I should move In Australia. I can’t be a good muslim because sometimes I open my hijab, I need a freedom That’s the first things why I should move In Australia.
Problems you had in your country
So many problem I had in my country are politic, etnic, rasis, religion. I was decided to made decision to leave my country because I would like to got my freedom, earn money to help my parents. Where ever I move to another place no one will accept me because of my religion, my etnic, my big family doesn’t allow be like that they will bullying us, people talk bad, and of course my mom gonna kill me. Also the community of jammah islamiah won’t me to have same partner. I can’t ask for help from the authorities or police in my country they will thing im wrong, and my father already has so many loan couldn’t be able to pay for the police, how do you I fell if something happened with my father. He will get punishment from the government such a thing like cut down or quit the job something like that. However I cant ask help from them. is a real risk will I suffer significant harm on me return to Indonesia.
When and why I left my country
In my country so many poor people they sell the daughter for having money just to life because are disaster, loan, jobless, homeless, . I wont be like that especially I had a mental trouble like LGBT, LGBT rights in Indonesia have been deteriorating. Unfortunately, the legal situation for LGBT people in Indonesia is only getting worse, not better. It is sad to have to start with this statement, but despite huge steps being taken in many countries, Indonesia’s anti- LGBT measures become increasingly draconian. I was decided to leave my country because I would like to help my family and also to help my self from the harm and risk. I used the passport to come here, Im did not payyed a bride because easy to come to Australia just for holiday. I didn’t choose to go to another country because I knew it if Australia is a good country to live, no rasis, the people in here was so very kind. Australian government so straight which is good for people can look after her self. I have been stay here for while but I fell freedom. No one will angry if I open my hijab, no one will bullying me if Im looking for same gender, I get visa by my self, I didn’t have difficulty at the border control because I came in the right way.
Do you have a right to visit or stay in another country? Would you face any risk of harm in that country?
I don’t have valid visa to move another country also because of this pandemic Covid 19. I wont go any place. i don’t have idea where should I go, in Australia I have friend, I can work like normal people with out discrimination. Please help me with my situation now. I cant just leave Australia I had loan, I was rent the house and im still work.
My Fears
I will describe my fears first thing if I return to Indonesia we don’t have money to renew the house and pay the loan the police gonna bring my father going to jail, my mother will thing better for me to get merried and ask money from son in law, how can I do that if Im not interested with the man, he will unsatisfied directly he hit me. If my family know also im LGBT they will give me whip, and Pasung Is the Indonesian Practice of Shackling and Imprisoning the Mentally Ill. The religious community will harm me like muhammadiah, jamah islamiah, human right government, parlement, and Lawmakers in Indonesia are pushing legislation that would force LGBTQ people into government-sanctioned rehabilitation centers to “cure” them of their sexual orientation or gender identity.
Last month, three lawmakers in Indonesia's House of Representatives introduced a draft of what is known as the “Family Resilience Bill.” The legislation would force gay, lesbian, bisexual and transgender people to undergo rehabilitation at a series of religiously-based treatment centers that would hypothetically be opened across the conservative archipelago. If they do not readily submit to rehabilitation, their family members would be compelled to report them. Its really real risk I will suffer the significant harm include the death penalty, being killed, torture , cruel and inhuman treatment or punishment and degrading treatment or punishment. I can stay in Australia without thing about risk and harm because the government of human right was good, people here also friendly. Until now im still single because I really look after my self. Last statement please help me to live in here, I wont go back to Indonesia I need to pay my rent, I need to work as well, I need to pay my loan also in Australia thank you very much.
(emphasis added)
Accordingly, the Tribunal proceeded to make its decision based on the following evidence (which will be referred to in the Tribunal’s decision below, where relevant):
(i)the PVA and relevant supporting documents on the Department’s file, that was before the delegate in making the Refusal Decision;
(ii)the Pre-hearing Information Form;
(iii)the Pre-hearing Written Submissions;
(iv)the oral evidence given by the Applicant at hearing; and
(v)relevant country information (on Indonesia) and other relevant extrinsic materials.
ISSUES
The issues to be decided by the Tribunal are whether the Applicant is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because:
(i)the Applicant is a “refugee,” as defined in s 5H(1) of the Migration Act, such that she satisfies the refugee protection criterion in s 36(2)(a) of the Migration Act; or, if not,
(ii)the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Indonesia, there is a real risk that she will suffer “significant harm” (as defined in s 36(2A) of the Migration Act) such that she satisfies the complementary protection criterion in s 36(2)(aa) of the Migration Act.
RELEVANT LAW
All relevant sections of the Migration Act are extracted in the Attachment to this decision.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Migration Act. An applicant for a protection visa must meet one of the alternative criteria in s 36(2)(a), s 36(2)(aa), s 36(2)(b) or s 36(2)(c) of the Migration Act.
Receiving country
For both refugee protection claims (under s 36(2)(a) of the Migration Act) and complementary protection claims (under s 36(2)(aa) of the Migration Act), the first issue to be determined by the Tribunal is the applicant’s “receiving country”, as defined in s 5(1) of the Migration Act: Refugee Law Guidelines, reissued 27 November 2022 (RL Guidelines), at 3.3.
“Receiving country” is defined, in relation to a non-citizen to mean:
(i)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(ii)if the non-citizen has no country of nationality (i.e. is stateless), a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country: s 5(1) of the Migration Act.
Refugee criterion – s 36(2)(a) of the Migration Act
As stated above, the refugee criterion for protection in s 36(2)(a) of the Migration Act is that the applicant for the protection visa is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the person is a “refugee”, as defined in s 5H(1)(a) or s 5H(1)(b) of the Migration Act.
Meaning of “refugee”
A person is a “refugee” (as defined in s 5H(1) of the Migration Act and for the purpose of the refugee protection criterion in s 36(2)(a) of the Migration Act) if:
(i)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) of the Migration Act; and
(ii)in the case of a person without a nationality (i.e. stateless), 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) of the Migration Act.
It follows that the definition of “refugee,” in s 5H(1) of the Migration Act, requires that a person has a “well-founded fear of persecution”, as defined in s 5J of the Migration Act.
“Well-founded fear of persecution”
A person has a “well-founded fear of persecution” if:
(i)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion: s 5J(1)(a) of the Migration Act; and
(ii)there is a “real chance” that, if the person is returned to the receiving country, the person would be persecuted for one or more of the five refugee protection reasons in s 5J(1)(a) of the Migration Act (as set out immediately above): s 5J(1)(b) of the Migration Act; and
(iii)the “real chance” of persecution relates to all areas of a receiving country: s 5J(1)(c) of the Migration Act.
“Well-founded fear of persecution,” as defined in s 5J of the Migration Act, comprises both a subjective (emotional) and objective basis: RL Guidelines at 3.4 and 3.10
In assessing whether an applicant has a “well-founded fear of persecution,” the Tribunal should assess whether the applicant, themselves, fears the persecution. This is because of the words in s 5J(1)(a) of the Migration Act, “the person fears being persecuted”, and in s 5J(4) of the Migration Act, “if a person fears persecution”, which implies that there is a subjective element to the “well-founded fear of persecution”: RL Guidelines at 3.10.1.
Whilst an applicant must hold a subjective fear of being persecuted, that subjective fear of persecution must be objectively “well-founded”: RL Guidelines at 3.10.
Meaning of “Real chance”
As stated above, under s 5J(1)(b) of the Migration Act, the Tribunal must be satisfied that there is a “real chance” that, if returned to the receiving country, the applicant would be persecuted for one or more of the five refugee protection reasons in s 5J(1)(a) of the Migration Act.
Section 5J(1)(b) of the Migration Act requires the Tribunal to first consider whether there is a “real chance” of persecution in the applicant’s “home region”, being where the applicant previously lived or other area to which the applicant had similar or substantial ties, before considering anywhere else in their receiving country: SZRKY v Minister for Immigration and Citizenship [2013] FCA 352 at [24], SZQZN v Minister for Immigration and Citizenship [2012] FMCA 939 at [49] and RL Guidelines at 3.12.
The notion of “real chance” of persecution involves a threshold of the likelihood of an event occurring in the future and that likelihood is one that is considered in relation to the applicant returning to the “receiving country,” as defined in s 5(1) of the Migration Act: RL Guidelines at 3.12.1.
“Real chance” is not defined in the Migration Act. However, in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 (Chan) the High Court, in considering the phrase “real chance”, stated:
· a real chance discounts what is remote and insubstantial: Chan at [407];
· a real chance is one that is not remote, regardless of whether it is less or more than 50%: Chan at [397] - [398]; and
· an applicant may have a “well-founded fear” of persecution even though there is only a 10% chance that they will be persecuted, however a far-fetched possibility of persecution must be excluded: Chan at [429] and RL Guidelines at 3.12.1.
A “real chance” is, therefore, not a possibility that is far-fetched and is not measured by a set percentage. A superficial statistical analysis without regard to the circumstances of the applicant, or circumstances of the case, will be insufficient to draw a conclusion that there is no “real chance” of persecution: DZADQ v Minister for Immigration and Border Protection [2014] FCA 754 at [65] and RL Guidelines at 3.12.1.
Reasonably foreseeable future
The “real chance” test is a forward-looking test which requires consideration of what may take place in the future, rather than what occurred in the past: DZADC v Minister for Immigration and Citizenship (No 2) [2012] FMCA 778 at [16]; SZSTZ v Minister for Immigration and Border Protection [2015] FCAA 92 and RL Guidelines at 3.12.2. It involves a “degree of speculation and weighing of reasonable possibilities”: Minister for Immigration andEthnic Affairs v Wu Shan Liang [1996] HCA 6 at [18] and RL Guidelines at 3.12.2.
The High Court has said that while the future is not predictable, the degree of probability that an event will occur is often assessable: Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 and RL Guidelines at 3.12.2. The assessment could be based on:
· past events and analysis of the conditions in which those events occurred;
· the likelihood of the introduction of new events that may decrease the likelihood of the past event occurring again; and
· an estimation of what event will give rise to the likelihood or not of an event recurring (this can be achieved through country information analysis): Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 and RL Guidelines at 3.12.2.
That is, there is no requirement for an applicant to show that they have been subjected to past harm for the Tribunal to find that there is a “real chance” of harm occurring in the future: Abebe v The Commonwealth [1999] HCA 14 at [192]. For example, an applicant may not have suffered harm in the past but, due to their particular circumstances (e.g. membership of a persecuted group) may have a well-founded fear of future persecution: see RL Guidelines at 3.12.2.
“Serious harm”
If a person fears persecution for one or more of the five refugee protection reasons, in s 5J(1)(a) of the Migration Act;
(i)that reason or those reasons must be the essential and significant reason for the persecution: s 5J(4)(a) of the Migration Act; and
(ii)the persecution must involve “serious harm” (as described in s 5J(5) of the Migration Act) to the person: s 5J(4)(b) of the Migration Act; and
(iii)the persecution must involve systematic and discriminatory conduct: s 5J(4)(c) of the Migration Act.
Examples of what constitutes “serious harm” are set out in s 5J(5) of the Migration Act, as follows:
· a threat to the person’s life or liberty: s 5J(5)(a) of the Migration Act and RL Guidelines at 3.11.1;
· significant physical harassment of the person: s 5J(5)(b) of the Migration Act and RL Guidelines at 3.11.2;
· significant physical ill-treatment of the person: s 5J(5)(c) of the Migration Act and RL Guidelines at 3.11.3;
· significant economic hardship that threatens the person’s capacity to subsist: s 5J(5)(d) of the Migration Act and RL Guidelines at 3.11.4;
· denial of access to basic services, where the denial threatens the person’s capacity to subsist: s 5J(5)(e) of the Migration Act and RL Guidelines at 3.11.5; and
· denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist: s 5J(5)(f) of the Migration Act and RL Guidelines at 3.11.6.
Examples of “serious harm” not listed in s 5J(5) of the Migration Act, may include the denial of fundamental human rights and serious mental harm: see RL Guidelines at 3.11.7.
Qualifications to “well-founded fear of persecution”
If the Tribunal determines that a person has a “well-founded fear of persecution,” it must nevertheless consider the following three qualifications before concluding the person is a “refugee” under s 5H(1) of the Migration Act:
(i)whether the “real chance” of persecution relates to all areas of the receiving country: s 5J(1)(c) of the Migration Act (If “no”, the person does not have a “well-founded fear of persecution”);
(ii)whether “effective protection measures” (as defined in s 5LA of the Migrations Act) are available to the applicant in the receiving country: s 5J(2) of the Migration Act (If “yes”, the person does not have a “well-founded fear of persecution”); and
(iii)whether the applicant could take reasonable steps to modify their behaviour to avoid a real chance of persecution in the receiving country, other than certain modifications: s 5J(3) of the Migration Act (If “yes”, the person does not have a “well-founded fear of persecution”).
Complementary protection criterion – s 36(2)(aa) of the Migration Act
If an applicant is found not to meet the refugee protection criterion in s 36(2)(a) of the Migration Act, they may nevertheless meet the criteria for the grant of a protection visa on complementary protection grounds in s 36(2)(aa) of the Migration Act.
Once the “receiving country” (as defined in s 5(1) of the Migration Act) of a non-citizen is determined, the following three conditions (contained in s 36(2)(aa) of the Migration Act) must be met for an applicant to be entitled to complementary protection under s 36(2)(aa) of the Migration Act:
(i) the Tribunal has substantial grounds for believing that;
(ii)as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country; and
(iii)there is a “real risk” the non-citizen will suffer “significant harm,” as defined in s 36(2A) of the Migration Act.
Substantial grounds for believing
“Substantial grounds for believing” is not defined in the Migration Act. Factors relevant to determining whether there are “substantial grounds for believing” an applicant would be at a real risk (as a necessary and foreseeable consequence of removal) of suffering significant harm, if removed from Australia to the receiving country, may include:
· any evidence of past significant harm, or past activities giving rise to significant harm, including activities in Australia or third countries (i.e. countries other than the receiving country);
· any evidence of an intention to target the applicant by the receiving country (for example, the issuing of arrest warrants);
· the laws and practices of the receiving country; or
· the pattern and conduct shown by the receiving country in similar cases: Department of Home Affair’s Complementary Protection Guidelines (CP Guidelines) at 3.5.5.
Also relevant to the determination of whether there are substantial grounds for believing that an applicant faces significant harm on return to the receiving country will be the assessment of the applicant’s credibility: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [31] and CP Guidelines at 3.5.5.
Necessary and foreseeable consequence
“Necessary and foreseeable consequence” is not defined in the Migration Act. However, it has been held that this phrase requires the Tribunal to be satisfied of a “real,” as opposed to speculative, casual, or temporal link between the applicant’s removal from Australia and the likelihood or possibility of their facing a “real risk” of being subjected to significant harm.
Significantly, the “necessary and foreseeable consequence” attaches to the “risk” of harm on return (rather than to the harm itself): SZSKC v Minister for Immigration and Border Protection [2014] FCCA 938 at [71], CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60] and Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22 and CP Guidelines at 3.5.6.
“Real risk”
The “real risk” test for complementary protection applies the same standard as the “real chance” test applicable to the assessment of “well-founded fear” for the purposes of “refugee” claims: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ) and [342] (Flick J).
Where claims overlap, the Tribunal may refer to and rely on its relevant findings on the refugee criterion (in s 36(2)(a) of the Migration Act) when assessing the complementary protection criterion (in s 36(2)(aa) of the Migration Act): DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities cited therein.
“Significant harm”
An applicant will suffer “significant harm” in the circumstances set out in s 36(2A) of the Migration Act. An applicant will only meet the complementary protection criteria if there are substantial grounds for believing they face a “real risk” (i.e. “real chance”) of one or more of the following types of “significant harm” if returned to the receiving country:
(i) they will be arbitrarily deprived of their life: s 36(2A)(a) of the Migration Act;
(ii) the death penalty will be carried out on them: s 36(2A)(b) of the Migration Act;
(iii) they will be subjected to torture: s 36(2A)(c) of the Migration Act;
(iv)they will be subjected to cruel or inhuman treatment or punishment: s 36(2A)(d) of the Migration Act; or
(v)they will be subjected to degrading treatment or punishment: s 36(2A)(e) of the Migration Act.
However, there is taken not to be a “real risk” (i.e. “real chance”) that an applicant will suffer “significant harm” in a country in the following circumstances set out in s 36(2B) of the Migration Act:
(i)where it would be reasonable for the applicant to relocate to an area where there would not be a real risk of significant harm: s 36(2B)(a) of the Migration Act;
(ii)where the applicant could obtain protection from an authority of the country such that there would not be a real risk of significant harm: s 36(2B)(b) of the Migration Act; and
(iii)where the risk is faced by population of the country generally and not by the applicant personally: s 36(2B)(c) of the Migration Act.
Mandatory considerations
In accordance with Ministerial Direction No. 84, made under s 499 of the Migration Act, the Tribunal has considered:
(i) the RL Guidelines and CP Guidelines prepared by the Department; and
(ii)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 this decision.
Applicant’s responsibility in relation to protection claims
It is the responsibility of the applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations (however arising) and to provide sufficient evidence to establish the claim: s 5AAA(1) and (2) of the Migration Act.
Importantly, the Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the applicant’s claim or establish, or assist in establishing, the claim: s 5AAA(4) of the Migration Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
Receiving country
Based on the evidence before the Department, and now before the Tribunal, the Tribunal is satisfied that:
· Indonesia is the country of nationality, and the “receiving country” (as defined in s 5(1) of the Migration Act) of the Applicant, for both refugee and complementary protection purposes; and
· the Applicant is currently living in Australia, outside her country of nationality (Indonesia), and, therefore, she is a “non-citizen in Australia” for both refugee and complementary protection purposes.
Claims of past harm in Indonesia
A summary of the Applicant’s oral evidence, at hearing, regarding her background, and claims of past harm, in Indonesia, before she arrived in Australia [in] December 2018 (then aged [Age] years), is as follows.
The Applicant said that she has [sisters] and one brother and that they all grew up in Palu, Sulawesi, Indonesia with their parents on a small farm, and that she is the eldest child in her family.
The Applicant confirmed that, as stated in her PVA, she completed Primary school (from [Year] to [Year]) in Palu, Sulawesi, Middle school (from [Year] to [Year]) in Palu, Sulawesi, High School (from [Year] to [Year]) in Donggala, Sulawesi, University (from July 2010 to July 2017) at [University], in Palu, Sulawesi and a University Research/thesis (from September 2016 to June 2017) at [University], in Palu Sulawesi on the topic “[Topic]” and her supervisor was [Dr A].
The Applicant told the Tribunal that in September 2018, an earthquake struck Central Sulawesi, Indonesia, resulting in a tsunami that caused widespread damage and destruction to Palu, Indonesia, where she then lived with her family. The Applicant said that the earthquake and tsunami resulted in her and her family having no house to live in and her having no job. Following the earthquake/tsunami, she and her family lived in a refugee camp for a period.
The Applicant said that she and her family needed to rebuild their family home and required help from the Indonesian government to do so, but they did not receive any. The Applicant said that she protested to the local government, asking for help, but they did not provide any. She said that, at this time, she was struggling with anxiety and mental health problems because, as the eldest child, she felt a responsibility to help her parents and other siblings.
When asked by the Tribunal to provide details about her protest to the local government, the Applicant replied by stating that the protest involved a “demonstration” by hundreds of students from the Student Executive Council, from the University at which she had studied, and a group of student activists from the City of Palu (some of whom were living “displaced” from the Donggala district of Sulawesi). The Applicant described the “protest” or “demonstration” as occurring in front to the local Mayor’s office in November 2018 and it lasted a couple of days.
When asked by the Tribunal whether the police or authorities were involved in the 2018 protest/demonstration and whether she was physically harmed as a consequence of her involvement in the 2018 protest/demonstration, the Applicant answered “no” and said that the 2018 protest/demonstration was a “peaceful” one.
Claims of future harm in Indonesia
A summary of the Applicant’s oral evidence, at hearing, regarding her life since arriving in Australia, and her claims of future harm in Indonesia, is as follows.
The Applicant told the Tribunal that when she first arrived in Australia, she worked as [an occupation 2]. She then worked, for five years, at a [workplace 1] and, more recently, has worked as [an occupation 3] at a [workplace 2], whilst studying [subject]. The Applicant said that since arriving in Australia, she has been sending money back to her parents and [siblings] ([sisters] and one brother) in Indonesia to support them.
When asked by the Tribunal whether her family home (i.e. parent’s small farm) in Palu, Sulawesi, Indonesia, had been rebuilt during the time she has been living in Australia (i.e. over six years), the Applicant replied “yes”.
When asked by the Tribunal what harm she fears if she returns to Indonesia in the reasonably foreseeable future, the Applicant’s response was, in summary, as follows:
· The Indonesian government will harm her because of her involvement in the 2018 protest/demonstration outside the local Mayor’s office, that they will “know her face” and likely hit and hurt her;
· She will be “scared” if she returns to Indonesia, as there are so many political and other problems in Indonesia, and will suffer from mental health and anxiety, she may even “suicide herself”;
· She will find it hard to find a job, and will be unable to support herself, in Indonesia;
· She likes the freedom she has in Australia, she now has her “own life”;
· She is currently “paying off” her car over a five year period in Australia and she has a lease which requires her to pay regular rent in Australia. Therefore, she needs to stay longer in Australia to make these payments;
· She feels safe and happy living in Australia and she wants to stay here forever; and
· Unlike the Indonesian government, the Australian Government help people.
Protest/demonstration claim
In the Pre-hearing Information Form (see [18] above), the Applicant raised for the first time that she was involved in “peaceful protests against the government policies particularly regarding …the freedom and restriction about how they manage the freedom of speech”. In her oral evidence at hearing, the Applicant again referred to her involvement in a protest/demonstration in late 2018, following the September 2018 earthquake/tsunami in Sulawesi, Indonesia: see [62] to [65] above. Further, as stated above (at [69]), the Applicant claims that if she returns to Indonesia, she will suffer harm by the Indonesian authorities because of her involvement in the 2018 protest/demonstration, that they will “know her face” and likely hit and hurt her, even though in her evidence at the hearing, the Applicant stated that she was never physically harmed by the Indonesian police/authorities at the time of the 2018 protest/demonstration, and that it was “peaceful”: see [65] above.
However, there was no mention made by the Applicant of the 2018 protest/demonstration in the PVA that was before the delegate of the Minister in making the Refusal Decision.
Section 367A of the Migration Act provides that if, in relation to an application for review of a reviewable protection decision (here, the Refusal Decision), the applicant raises a claim that was not raised or, presents evidence that was not presented, before the Refusal Decision was made, in making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a “reasonable explanation” why the claim was not raised, or the evidence was not presented, before the Refusal Decision was made.
No “reasonable explanation” was provided by the Applicant regarding why she did not raise her claim that, if returned to Indonesia, she will suffer harm at the hands of the Indonesian police/authorities because of her involvement in a “peaceful” protest/demonstration in late 2018 before the Refusal Decision was made. Similarly, no “reasonable explanation” was provided by the Applicant in relation to why she did not present any evidence concerning this claim before the Refusal Decision was made. Consequently, the Tribunal draws an adverse inference unfavourable to the credibility of the Applicant’s claim and evidence that, if returned to Indonesia, she will suffer harm at the hands of the Indonesian police/authorities because of her involvement in a “peaceful” protest/demonstration in late 2018: s 367A(2) of the Migration Act.
LGBT claim
In the Pre-hearing Written Submissions (see [19] above), the Applicant refers, among other things, to the fact that she identifies as LGBT and that she fears that she will suffer harm, if returned to Indonesia, because of her “sexual orientation or gender identity”, as an LGBT person. There is no mention made of this claim by the Applicant in either the PVA, which was before the delegate of the Minister in making the Refusal Decision (see [9] above), or in the Pre-hearing Information Form: see [18] above. Nor did the Applicant raise this claim in her oral evidence at the hearing.
When asked by the Tribunal to comment on why there is no mention, in the PVA, the Pre-hearing Information Form or her oral evidence at hearing of her claim that she will be harmed if she returns to Indonesia because she identifies as LGBT but that this is referred to in the Pre-hearing Written Submissions, the Applicant’s response was as follows:
· when she lived in Indonesia, before coming to Australia, she did not really like men (or want to marry a man), but preferred the company of women and that all of her friends, back in Indonesia, were women;
· now that she was in Australia, and had the freedom of living in Australia, she liked men, not women;
· she does not identify at LGBT; and
· her “friend”, in Australia, helped her prepare/write the Pre-hearing Written Submissions.
Based, on the Applicant’s oral evidence at hearing, the Tribunal does not accept that the Applicant is or ever has identified as LGBT and, therefore, rejects her claim (as made by her in the Pre-hearing Written Submissions which, as stated above, she did not maintain at the hearing) that there is a “real chance” she will suffer any harm, let alone “serious harm”, if returned to Indonesia, in the reasonably foreseeable future, because she identifies as LGBT.
ISSUE 1 – Refugee protection
Is the Applicant a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations, under s 36(2)(a) of the Migration Act, because she is a “refugee”, as defined in s 5H(1) of the Migration Act?
As stated above (at [26] to [28]), to be entitled to refugee protection under s 36(2)(a) of the Migration Act, the Applicant must be a “refugee”, as defined in s 5H(1) of the Migration Act, namely a person who has a “well-founded fear of persecution”, as defined in s 5J(1) of the Migration Act (see [29] to [32] above), for one or more of the five refugee protection reasons for persecution in s 5J(1)(a) of the Migration Act (i.e. race, religion, nationality, membership of a particular social group or political opinion): s 5J(1)(a) of the Migration Act.
For the reasons set out above (at [70] to [76]), the only fears claimed by the Applicant, at the time of the hearing before the Tribunal, are that if she is returned to Indonesia, she:
· will be “scared”, as there are so many political and other problems in Indonesia, and will suffer from mental health and anxiety, she may even “suicide herself”;
· will find it hard to find a job, and will be unable to support herself, in Indonesia;
· likes the freedom she has in Australia, she now has her “own (independent) life” that she did not have in Indonesia;
· is currently “paying off” her car, over a five year period, in Australia and she has a lease which requires her to pay regular rent in Australia. Therefore, she needs to stay longer in Australia to honour these payments;
· feels safe and happy living in Australia and wants to stay here forever, if possible; and
· unlike the Indonesian government, the Australian Government help their people.
Whilst sympathetic to the Applicant’s circumstances, none of the above reasons for claiming protection fall within the refugee protection reasons prescribed by s 5J(1)(a) of the Migration Act. Accordingly, the Applicant is not a “refugee”, as defined in s 5H(1) of the Migrations Act and, it follows, is not a person in respect of whom Australia has refugee protection obligations under s 36(2)(a) of the Migration Act.
More specifically, the Tribunal is not satisfied that there is a “real chance”, as that expression is understood to mean (see [33] to [37] above), that the Applicant will suffer “serious harm”, as that expression is understood to mean (see [41] to [43] above), for one or more of the five refugee protection reasons for persecution in s 5J(1)(a) of the Migration Act (i.e. race, religion, nationality, membership of a particular social group or political opinion) if she is returned to Indonesia in the “reasonably foreseeable future”, as that expression is understood to mean: see [38] to [40] above.
ISSUE 2 – Complementary protection
Is the Applicant a non-citizen in respect of whom the Tribunal is satisfied Australia has protection obligations, under s 36(2)(aa) of the Migration Act, because it has substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Indonesia, there is a “real risk” she will suffer “significant harm”, as defined in s 36(2A) of the Migration Act?
Having concluded that the Applicant does not meet the refugee protection criterion in s 36(2)(a) of the Migration Act, the Tribunal has considered, below, the alternative complementary protection criterion in s 36(2)(aa) of the Migration Act.
Based on the totality of the evidence before the Tribunal, as set out above, The Tribunal is not satisfied that there are “substantial grounds for believing”, as that phrase is understood to mean (see [47] to [48] above), that as a “necessary and foreseeable consequence”, as that expression is understood to mean (see [49] and [50] above) if the Applicant is removed from Australia to Indonesia in the “reasonably foreseeable future”, as that expression is understood to mean (see [38] to [40] above), there is a “real risk”, as that expression is understood to mean (see [51] and [52] above) she will suffer “significant harm”, as defined in s 36(2A) of the Migration Act (see [53] above) because of the reasons claimed by the Applicant: see [69] above.
It follows that the Tribunal is not satisfied that the Applicant is a person (i.e. a “non-citizen in Australia”) in respect of whom Australia has complementary protection obligations under s 36(2)(aa) of the Migration Act.
CONCLUSIONS
For the above reasons, the Tribunal is not satisfied that the Applicant is a non-citizen in Australia in respect of whom Australia has:
(i)refugee protection obligations, under s 36(2)(a) of the Migration Act, because she is a “refugee”, as defined in s 5H(1)(a) of the Migration Act; or, alternatively,
(ii)complementary protection obligations, under s 36(2)(aa) of the Migration Act, because there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Indonesia, there is a “real risk” she will suffer “significant harm”, as defined in s 36(2A) of the Migration Act.
There is no suggestion that the Applicant satisfies s 36(2) of the Migration Act, based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Migration Act, and who holds a protection visa. Accordingly, the Applicant does not satisfy the criterion in s 36(2) of the Migration Act.
DECISION
For the above reasons, the Tribunal affirms the Refusal Decision (i.e. the Respondent’s decision not to grant the Applicant a protection visa).
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.
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