2014119 (Refugee)

2014119 (Refugee) [2024] AATA 4381 (10 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:

Name

Date of Birth

Department reference

Tribunal reference

[Applicant 1]

[Deleted.]

[Deleted.]

2014119

[Applicant 2]

[Deleted.]

[Deleted.]

2112748

COUNTRY OF REFERENCE: Indonesia
MEMBER:Member Nathan Goetz
DATE:10 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision dated 3 September 2020 refusing to grant [Applicant 1] a protection visa.
The Tribunal affirms the decision dated 31 August 2021 refusing to grant [Applicant 2] a protection visa.

Statement made on 10 September 2024 at 4:23pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – family violence – criminal gang forced recruitment – physical assault – fear of killing – detention – mental health issues – delay in applying for protection – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 57, 58, 65, 425, 499
Migration Regulations 1994, Schedule 2; r 1.12
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

These are applications for merits review of decisions made under s 65 of the Migration Act 1958 (Cth) (the Act) by delegates of the Minister refusing to grant each applicant a protection visa.
The applicants were not represented in the review.
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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
BACKGROUND
This decision record relates to two applicants who made separate visa applications and separate review applications.
[In] September 2014 [Applicant 1] arrived in Australia holding a [temporary] visa which was valid until 2 October 2014. He then became an unlawful non-citizen in Australia.
On 8 March 2019 [Applicant 1] applied for a protection visa. He was granted a bridging visa to regularise his migration status in Australia on 20 March 2019 and was granted a subsequent bridging visa which he continues to hold to date.
On 3 September 2020 the delegate refused to grant the [Applicant 1] the protection visa. On 17 September 2020 an application was made to the Tribunal to review the decision.
[In] December 2016 [Applicant 2] arrived in Australia holding a visitor visa which was valid until [March] 2017.
On 3 March 2017 [Applicant 2] applied for a protection visa. She was granted a bridging visa to regularise her migration status in Australia following the expiration of the visitor visa. She continues to hold this bridging visa to date.
On 31 August 2021 the delegate refused to grant [Applicant 2] the protection visa. On 21 September 2021 an application was made to the Tribunal to review the decision.
On 27 June 2024 the Tribunal wrote to [Applicant 1] under s 425(1) of the Act and invited him to appear at a Tribunal hearing scheduled for 1:30pm on 17 July 2024 at the Melbourne registry so [Applicant 1] could give evidence and present arguments relating to the issues arising in relation to the decision under review. Included with the hearing invitation was a ‘response to hearing invitation form’ that the applicant was directed to complete and return to the Tribunal. [Applicant 1] returned the completed form, indicating that he would appear at the Tribunal hearing.
On 17 July 2024 [Applicant 1] appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Indonesian languages.
At the start of the Tribunal hearing, the Tribunal became aware that [Applicant 2] had also applied for review of a decision to refuse to grant her a protection visa and asked [Applicant 1] if he would like to have his and [Applicant 2’s] Tribunal hearings held together. He said he would and told the Tribunal that both he and [Applicant 2] were aware of each other’s protection claims.
[Applicant 1] telephoned [Applicant 2] that day and she agreed to the Tribunal hearings being held together. The Tribunal hearing was postponed until 1 August 2024 to allow [Applicant 2] to be invited to appear at a Tribunal hearing held jointly with [Applicant 1].
On 1 August 2024 both [Applicant 1] and [Applicant 2] appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Indonesian languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal considered all the evidence relevant to the protection visa applications and the review applications, including the oral evidence provided at the Tribunal hearings.
The issue in the review is whether either applicant satisfies s 36(2)(a) or (aa) or (b) or (c) of the Act.
If the Tribunal finds that a particular applicant satisfies either s 36(2)(a) or (aa) or (b) or (c) of the Act, the correct or preferable decision is to set aside the decision refusing to grant that applicant the protection visa and remit the visa application back to the delegate for reconsideration, with a direction about the criteria the Tribunal has found the applicant satisfies.
If the Tribunal finds that a applicant does not satisfy s 36(2)(a) and (aa) and (b) and (c) of the Act, the correct or preferable decision is to affirm the decision refusing to grant that applicant the protection visa.
What is the Identity, family and country of reference for each applicant?
According to the protection visa application form, [Applicant 1] is a male citizen of Indonesia who was born in Jakarta, Indonesia. He claimed that he did not have the right to enter and reside in any other country. He detailed that his ethnicity is ‘Asia;’ his religion is ‘Muslim;’ and his occupation is ‘[occupation 1].’ He was the only person included in the visa application form and he claimed that he was ‘never married or been in a de facto relationship.’ [Applicant 1] identified a father and mother in the form who were currently living in Indonesia. The Tribunal was told that [Applicant 1] has no siblings, which was consistent with the lack of siblings identified in the protection visa application form. [Applicant 1] did not provide his previous addresses where he lived in Indonesia.
Included with the visa application was a copy of [Applicant 1] Indonesian passport which was issued [in] 2014 indicating that he was born on [date] in Jakarta. The passport was valid for five years.
According to the protection visa application form, [Applicant 2] was born on [date] in Bali, Indonesia. She claimed that she did not have the right to enter and reside in any other country. She did not identify her ethnicity; she detailed her religion as Islam and her occupation is ‘unemployed. She was the only person included in the visa application form and she claimed that she was ‘never married’ or been in a de facto relationship. [Applicant 2] identified a mother in the form who was currently living in Indonesia. The delegate was told that [Applicant 2’s] father was deceased, which would account for why he was not identified in the protection visa application form. The delegate was also told that [Applicant 2] had [number] siblings in Indonesia, which was inconsistent with the detail contained in the protection visa application form where no siblings were identified. [Applicant 2] a residential address where she lived in Indonesia.
Included with the visa application was a copy of [Applicant 2] Indonesian passport which was issued [in] 2014 indicating that she was born on [date] in Banguwangi, Indonesia. The passport was valid for five years.
In the course of the review, the Tribunal was provided with an Australian marriage certificate indicating that the applicants were married [in] August 2019. The applicants appeared at the Tribunal hearing and there evidence was that they were a married couple and living together as a couple. At the Tribunal hearing, the Tribunal was told that the applicants did not know each other in Indonesia and that they met and formed a relationship in Australia.
In those circumstances, the Tribunal is satisfied that they are members of the same family unit, meaning that if one of the applicants met the criteria for the grant of a protection visa under s 36(2)(a) or (aa) of the Act, the other applicant would meet the requirements for the grant of the protection visa on the basis of being a member of the same family unit as provided by s 36(2)(b) or (c) of the Act.
The Tribunal is satisfied that the applicants are who they claim to be, namely citizens of Indonesia presently located in Australia, based on the production of their Indonesian passports.
There is no evidence that the applicants have a right to enter and reside in any other country.
At the Tribunal hearing, the Tribunal was told that [Applicant 2] is pregnant and due to give birth in [specified month]. The Tribunal was provided a letter dated 9 June 2024 showing that [Applicant 2] had an appointment on 22 July 2024 at [Health Service 1] in connection with her pregnancy as well as a a document from [another agency] for an appointment on 5 April 2024.
For the purpose of the protection visa assessment, the country of reference for each applicant is Indonesia.
What are the 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.
As the Tribunal is satisfied that the applicants are citizens of Indonesia, the relevant country information report is the most recent Department of Foreign Affairs and Trade Report (DFAT) Country Information Report on Indonesia which is dated 24 July 2023. The Tribunal has considered its contents.
What are the protection claims?
The visa application forms and material in the course of the visa application
In the protection visa application form, [Applicant 1] wrote that he left Indonesia because ‘I have some physical and harmed from my friends, coz before I have to joint gangster.’ I think I will be safe but not fore sure because we do negative think like thugs to blackmail traders some people to get money.’
[Applicant 1] was asked whether he experienced harm in Indonesia and was asked to give details. [Applicant 1] wrote ‘Yes for sure harmed mental and physical with me and family also because I was pined gangster killer.’ He wrote that he did not seek help with Indonesia because ‘I don’t know which country can safe me and help me.’ He wrote that he had ‘moved another places but not country but they will fund me until everywhere.’
In the protection visa application form, [Applicant 1] claimed that if he returned to Indonesia, ‘that community will try and target or kick me because I know of the dare job and they crimes.’
On 17 July 2020 the delegate wrote to the applicant under s 58 of the Act and asked for more information about his claimed past experiences in Indonesia, specifically asking for:
·     Further information about the gangster group the applicant joined, such as how many members were part of the group and where was the group based.
·     Further information about the applicant’s friends who physically harmed him, including who harmed the applicant; where he was when the harm happened; and what harm happened to him.
·     Further information about what “pined gangster killer” meant.
·     Further information about whether the applicant has been arrested, imprisoned, or detained for any criminal matter in Indonesia and if so, evidence of any time the applicant was arrested; any time the applicant was imprisoned; and any time the applicant was detained.
[Applicant 1] was given 28 days to respond to the request for information and did not do so.
On 17 July 2020 the delegate wrote to [Applicant 1] under s 57 of the Act and invited him to comment on information which would be the reason, or part of the reason, for the delegate to refuse to grant the applicant the visa.
The information was that [Applicant 1] did not apply for a protection visa in Australia until 4 years after arriving in Australia. The delegate reasoned that the length of time passed between [Applicant 1] arrival in Australia and lodging the protection visa would be a matter that the delegate took into account when considering the genuineness of the applicant’s protection claims.
The delegate asked [Applicant 1] to:
· Provide any comments or further information about why this much time passed before the applicant lodged the protection visa application.
The [Applicant 1] was given 28 days to provide comment or further information and did not do so.
The delegate did not interview [Applicant 1], apparently in favour of writing to him seeking more information and raising the concerns through the s 57 process.
In the protection visa application form, [Applicant 2] wrote that she had to leave Indonesia because of ‘my boyfriend’s violence.’ She claimed that she was mistreated by him in Indonesia. She met this boyfriend when she worked in [Employer 1] and they started to live together in 2016. She discovered he was addicted to drugs. She wanted to break up with him because he hurt her when he took drugs. He also suffered from depression. She claimed that he became violence and sensitive and her life was in danger when she lived with him. She also wrote that she had asked police to take her boyfriend away but that the police could not arrest him because his parents worked for the government. She declared that she did not move, or try to move to another part of Indonesia to seek safety because the boyfriend ‘will find me because he can access police station information with his parent’s help.’
In the protection visa application form, [Applicant 2] claimed that if she returned to Indonesia, her boyfriend would continue to hurt her.
Evidence provided by [Applicant 2] to the delegate at interview on 12 July 2021 concerning her protection claims.
At the delegate interview, [Applicant 2] said that the boyfriend referred to in the protection visa application was a man named [Partner A] who was about a year older than her (she did not know his date of birth) and that she only knew the boyfriend by that name. She told the delegate that she had a problem with this ex-boyfriend and that he did a lot of domestic violence to her but at the beginning he was notice to her. She told the delegate that one day she went into a room and [Partner A] was there. She surprised him. He tried to hide something in a bottle and she believed that [Partner A] was smoking or drinking alcohol. When she asked [Partner A] what was in the bottle he strangled her until she went down. She is scared that [Partner A] is still looking for her. Apart from [Partner A], there was no one else she feared in Indonesia. She claimed that [Partner A] went to a friend’s house looking for her to resume the relationship. She was there but she did not want to go with him.
She detailed that the relationship started around January 2016 and that they stayed together less than a year. The relationship ended when he strangled her which she thinks occurred in August 2016. She met [Partner A] when they worked at the same business and stated off as friends. She thinks that that the last time she saw [Partner A] was in September 2016 but she cannot be sure of the month. She told the delegate that she moved out to live with a friend and stay there but she returned to Banyuwangi before coming to Australia.
When asked whether the police in Indonesia could and would protect her from [Partner A], she told the delegate that she saw a police officer once in the street when she was going out to lunch. The police were attending a disturbance. She told the police officer about the problem with [Partner A] but he said to her that the case would not be strong as she had no bruises.
[Applicant 2] told the delegate that if she reported the problem to police ‘sneaky things’ would be done behind her back’ because [Partner A’s] parents had a relationship with the government. She told the delegate that she had never met his parents and does not know their names and that it was [Partner A] who told her about the relationship. Apart from approaching the police at the disturbance, she never went to the police to report what had happened because she was scared about the police.

After the interview, [Applicant 2] sent an email on 13 July 2021 to the delegate attaching a video clip of 13 seconds. It showed [Applicant 2] touching her right forearm with her finger. She described the video footage in the email as ‘proof that I have experienced violence’ because ‘my hand was injured.’
The delegate also discussed with [Applicant 2] that in a student visa application made by her whichwas lodged offshore on 22 March 2016 and refused on 4 April 2016, she detailed that she worked at [Employer 2] which was a business selling [product 1]. The delegate noted that [Applicant 2] did not detail in the student visa application that she worked at ‘[Employer 1]’ as an assistant between February 2005 and December 2016 (which was the only employment declared in the protection visa application form) which is where [Applicant 2] had, according to the protection visa application, met [Partner A] while they both worked at [Employer 1]. In response to that issue, [Applicant 2] said that she did work at [Employer 1] and that she did not know what was written down in her student visa application.
At the delegate interview, [Applicant 2] said that she needed more time in Australia so she could find a husband and return to Indonesia with that husband.
Oral evidence provided at the Tribunal hearing
At the Tribunal hearing, the Tribunal was told that [Applicant 1] is worried that if he returns to Indonesia, he will be persecuted and does not know what will happen to him because he worries that there might be some people looking for him.
[Applicant 1] told the Tribunal that he was part of a gangster group and that they had arguments and fought because of ‘his decision.’ He told the Tribunal that his leg was stomped on and he was shot. In response to the question about why he came to Australia [in] September 2014, [Applicant 1] told the Tribunal that he asked for assistance to come to Australia and he thought about coming to Australia for employment and protection, and he had no idea about the visa he held coming to Australia. He confirmed that the purpose of leaving Indonesia was to come to Australia and never return.
Noting the delay between [Applicant 1] arriving in Australia and applying for a protection visa some 4 and a half years later, the Tribunal queried why [Applicant 1] would delay lodging a protection visa for that amount of time if his protection claims were true. [Applicant 1] told the Tribunal that he did not know about the way to apply for a protection visa, that his English was no good, and that the ‘situation remained the same.’ He told the Tribunal that he only mingled with workers and friends in Australia (despite declaring no current or past employment in the visa application form) and just decided to focus on work.
The Tribunal asked what changed in March 2019 when he lodged the protection visa application. He told the Tribunal that he became aware of how to apply for the protection visa because of [Applicant 2]. [Applicant 1] told the Tribunal that he thought it would be better to apply for a visa so he could obtain work rights and be able to work lawfully.
[Applicant 1] told the Tribunal that he used a person named [Mr A] to apply for the protection visa but that person has returned to Indonesia. He met this person working on a farm. The Tribunal asked why there was no declaration about the assistance [Applicant 1] received in completing the protection visa application form. [Applicant 1] said that he did not know how to apply so he told [Mr A] his story and he helped him.
The Tribunal noted to [Applicant 1] that he had been asked for further information in support of his protection claims by the delegate and that he did not respond to the request for information. [Applicant 1] told the Tribunal that he did not know that the delegate had requested this information because he ‘was not good with the internet’ and it was not until he received the correspondence from the Tribunal that he was aware that this had been sent. He told the Tribunal that even if he had received the request for information from the delegate, he would not have been able to respond because he would not know where to get assistance from. The Tribunal noted to [Applicant 1] that it might form a view that the reason [Applicant 1] did not respond to the delegate’s request for information was because the claims were not true.
Concerning the particular incident when [Applicant 1] claimed he was assaulted by gang members, [Applicant 1] said that he told [Mr A] about what happened to him in Indonesia and as told to relax because [Mr A] would do it for him. When asked by the Tribunal about when it was that he was physically harmed by the gang members, [Applicant 1] said it was between 2008 and 2009. He claimed that he could not be more specific than that because it had been a while, but he can remember the pain and trauma. In response to the Tribunal’s concern that [Applicant 1] may not be able to be more specific because the claims were not true, [Applicant 1] responded that it happened and a market during the day when he was collecting money from vendors at a market. He confirmed that the assault happened once.
[Applicant 1] told the Tribunal that he lived in Jakarta in his family home the entire time he was in Indonesia. This was inconsistent with [Applicant 1] claim in the protection visa application form that he had ‘moved other places’ within Indonesia to seek safety, although [Applicant 1] provided no evidence in the protection visa application form of his address history in Indonesia. The Tribunal asked [Applicant 1], based on his evidence that he had lived in Jakarta in his family home the entire time he was in Indonesia why he would do so and not go elsewhere if gangsters were looking for him. He then told the Tribunal that he did temporarily move out to get away, but then went back to live with his parents before being told by a friend about the best way to find employment was by going overseas. He then claimed that gangsters went to the family home when he was not there.
At the Tribunal hearing, the Tribunal noted that [Applicant 2] had told the delegate that she needed more time in Australia to find a husband so she could return to Indonesia with that husband. The Tribunal assumes that request was based on a belief that if [Applicant 2] had a husband who went to Indonesia with her, he would protect her from [Partner A]. The Tribunal noted that this was an odd request from [Applicant 2], given that she was already married to [Applicant 1] at the time of the delegate interview and could have returned to Indonesia with him. [Applicant 2] questioned whether she had really said that to the delegate, and suggested that if she did say this, she must have been nervous.
The Tribunal noted that [Applicant 2] had written in her protection visa application form that she had sought help from a police station but that the police protected [Partner A]. The Tribunal asked [Applicant 2] to explain about the help she sought from the police station. [Applicant 2] told the Tribunal that she did not report the matter to the police nor go to the police directly. She repeated to the Tribunal what she had told the delegate, namely that she saw a policeman on the street who was attending to a disruption and asked him about what she could so. She told the Tribunal that the police officer said she could leave her boyfriend. [Applicant 2] repeated that she was worried about interacting with police because [Partner A’s] parents work for the government (but she was not sure in what capacity). She did not address why she would approach the police officer and discuss her situation when she was worried about the connections [Partner A’s] parents had to police, which was apparently why she did not go to a police station.
The Tribunal asked [Applicant 2] whether she had injuries on her arm from the assault when she spoke to the police officer, aware that [Applicant 2] had told the delegate that the police said that nothing could be done because [Applicant 2] did not have any bruises. [Applicant 2] told the Tribunal that at the time she spoke to police, the injury to her arm had not happened. The Tribunal accepts that [Applicant 2] did not specifically tell the delegate that she spoke to the policeman on the street after the assault when her arm was apparently injured (as suggested by the video that had been provided).
The Tribunal asked [Applicant 2] why she did not report the assault to police, given she apparently received injuries to her arm. [Applicant 2] told the Tribunal that the assault on her arm was the last incident before ethe couple separated and that she had been hit and assaulted many times previously. She told the Tribunal that she was scared and went back to live in Java and did not think of reporting [Partner A] because she was scared and did not want to get into trouble. She told the Tribunal that the injury to her hand occurred in August 2016 and that she went to stay at a friend’s place for one or two days, but [Partner A] found her and then took her back to where they were living. It was a few days later than she decided to leave [Partner A] when she could safely leave where the couple were living.
The Tribunal asked [Applicant 2] why the protection visa application form detailed that she went to a police station but the police protected [Partner A] if this did not occur. She told the Tribunal that she did not tell the person who assisted her to complete the form this. Noting that no declaration was made that [Partner A] received assistance to complete the protection visa application form, [Partner A] responded that maybe the person who assisted her did not want to ‘take the risk.’ She identified the person who assisted her as a Malaysian whose name was [Ms B]. The Tribunal asked [Applicant 2] whether the reason [Ms B] did not want to ‘take the risk’ by identifying the assistance provided in the visa application form because the protection claims were not true. [Applicant 2] disputed that this was the case.
The Tribunal noted that in the protection visa application form [Applicant 2] declared that she did not move, or try to move, to another part of Indonesia to seek safety. In the form, she attributed a failure to do this because she was sure that [Partner A] would find her because he has ‘access to police station information with his parent’s help.’ This was inconsistent with [Applicant 2’s] oral evidence that she moved and lived with a friend after the assault. The Tribunal observed to [Applicant 2] that it would have thought that she would have declared this move and the fact that [Partner A] had found her at her friends place in the protection visa application form is this was true. She responded that she told the person assisting her that she had run away. She then told the Tribunal that the reason she did not declare that she had moved to another place to seek safety was due to the fact that she lived in one suburb and the friend lived in another suburb. The Tribunal understood her evidence to be that the places were in close proximity.
[Applicant 2] told the Tribunal that [Partner A] was a colleague who she met while working at a business named [Employer 1]. She identified the business as located in Bali. The Tribunal noted that the protection visa application form identified that she worked at that business from 2005 until December 2016. [Applicant 2] told the Tribunal that she did not mention to the person assisting her that she worked there until December 2016 and suggested that this person added that to the form, but did not provide a reason why this person would do that.
The Tribunal noted what [Applicant 2] had told the delegate at interview concerning her employment in Indonesia, and the delegate’s discussion with her about the fact that her student visa application form identified no employment at a place named [Employer 1]. [Applicant 2] said that she did not know what was put in her visa application because the person assisting her ‘wrote it themselves.’ The Tribunal asked the applicant why the person assisting her for the student visa would put information in the form about her employment history off their own initiative. [Applicant 2] said that she did not know why and left the student visa application to them.
The Tribunal noted that [Applicant 2] had put in her protection visa that she had not been refused any visa to come to Australia, but it became apparent during her interview with the delegate that [Applicant 2] had in fact been refused a student visa. The Tribunal asked whether the reason [Applicant 2] did not declare that she had been refused that visa was due to the fact that the employment in that visa application form identified by the delegate undermined her protection claims. [Applicant 2] told the Tribunal that she did not know what was in the student visa application.
The Tribunal asked [Applicant 2] what would happen to her if she returned to Indonesia. [Applicant 2] told the Tribunal that [Partner A] continues to look for her, which she knows from her sister in Indonesia. She claimed that this would be a big problem because she may be forced to get back with [Partner A] which would be a huge problem because she now has a husband.
Material in the course of the review
On 16 July 2024, [Applicant 1] returned a ‘pre-hearing information form’ that the Tribunal sent to him on 3 June 2024. In that form, the applicant wrote:
“I still want to live here…with my wife and children later…because in Australia it’s easy to take care of everything, the place is peaceful, there’s rarely any crime, even school fees are adequate, hospital fees can also be paid by instalments. There’s also lots of work here. And even in Indonesia, I don’t have any business, because while I work here, I spend my money on having fun. And now I have a wife and children, so I want to focus on my family and want to raise my children here.”
On 22 July 2024, [Applicant 2] returned a ‘pre-hearing information form’ to the Tribunal. [Applicant 2] repeated her claims concerning her former boyfriend and wrote that she had ‘information and additions that we want to attach here about my current life which is quite comfortable.’ She detailed the marriage to [Applicant 1] and their struggle to have children, noting their participation in the IVF programme which has resulted in success. She claimed that the couple planned to have another child via the same programme and that if she was required to leave Australia the IVF programme may be unaffordable in Indonesia. She wrote that her working income in Indonesia is only enough to cover living expenses and that job opportunities in Indonesia are minimal. She claimed that in Australia everything is much easier, including hospital fees, education, and lots of jobs.
At the Tribunal hearing, the Tribunal raised how these matters meant that the applicants had a well-founded fear of persecution in Indonesia or that there was a real chance they would suffer significant harm as a result of their removal from Australia to Indonesia. The Tribunal was told that they worried for the safety of their child, worried that their child may end up like how [Applicant 1] was in Indonesia, and that it would be difficult for them to find jobs in that country and receive healthcare and things that are affordable.
Are there credibility concerns separate from the protection claims?
[Applicant 2] participated in an interview with the delegate on 12 July 2021 with the assistance of an interpreter. The delegate did not request [Applicant 1] to participate in an interview.
[Applicant 2] told the delegate that she did not have to correct any information in her protection visa application form, other than to check whether she had provided her passport to the delegate. Despite the Tribunal being provided with an Australian marriage certificate indicating that the applicants were married in August 2019, [Applicant 2] told the delegate that she had not family in Australia, that she was single and that she had never been married. When asked by the delegate whether she had ever been in a de facto relationship, she told the delegate that she had been in a relationship in the past in Indonesia with a person named [Partner A]. The delegate asked [Applicant 2] whether he had entered into a marriage or new relationship in Australia, and she said no suggesting that she previously had a boyfriend but was no longer in that relationship.
At the Tribunal hearing, the Tribunal noted [Applicant 2’s] evidence to the delegate about her marital status. Given [Applicant 2] was married at the time she participated in the interview with the delegate, the Tribunal noted to [Applicant 2] that it might form a view that she had a flexible approach to the truth. The Tribunal’s reasoning was that [Applicant 2’s] willingness to provide untruths to a decision-maker about something as basic as whether she was married or presently in a relationship might suggest that [Applicant 2] was willing to say, or not say, something to a decision-maker if she saw some benefit in doing so. [Applicant 2] told the Tribunal that the reason for this inconsistent evidence could have been because she was ‘nervous’ and that she ‘blanked out.’
In the protection visa application form, [Applicant 2] declared that she had never had an Australian immigration visa refused or cancelled and that she had never applied for an Australian visa outside of Australia. At the delegate interview, the delegate noted that [Applicant 2] had in fact applied for a student visa in 2016 which was refused and she had not declared this. [Applicant 2] claimed that she did not know what was written in the protection visa application form as an explanation about why she did not declare that she had previously applied for a student visa that had been refused.
After the interview, [Applicant 2] sent an email to the delegate on 13 July 2021 commenting on her failure to detail that she had applied for a student visa that had been refused. She wrote that she did apply for that visa because she had wanted to go to school with a friend in Australia, but that at the time she was ‘not close with [Partner A] and that she applied for the visa with an agent and apologises for not being able to explain that at the delegate interview.
Are the protection claims made by each applicant credible?
The Tribunal has considered the protection claims raised by each applicant and considered whether any of those claims, if made out, would also result in the remaining applicant facing a real chance of serious harm in Indonesia due to their race, religion, nationality, membership of a particular social group or political opinion. The Tribunal has also considered whether any of those claims, if made out, would result in the remaining applicant facing a real risk of significant harm as a result of their removal from Australia to Indonesia.
The Tribunal made due allowances for the fact that each applicant’s oral evidence was provided through an interpreter and that the applicant’s claimed experiences, if true, occurred some time ago and that memory is not infallible.
[Applicant 1]
Having reflected on the totality of the evidence, the Tribunal is not persuaded that [Applicant 1] is a credible witness about his claimed experiences of harm in Indonesia and his fear of future harm in Indonesia associated with those claimed experiences for the following reasons.
First, the delay in [Applicant 1] applying for a protection visa after his arrival in Australia in substantial, especially in light of the fact that he gave oral evidence to the Tribunal that his purpose coming to Australia was to depart Indonesia and not return. The Tribunal struggles to accept that [Applicant 1] would arrive in Australia and not make attempts to regularise his migration status in Australia shortly after his arrival, and would instead allow himself to become an unlawful non-citizen liable to immigration detention and removal to Indonesia.

The Tribunal is not persuaded by [Applicant 1’s] explanation about the delay in lodging the protection visa, it coming only after he was made aware that there was a thing called a protection visa from [Applicant 2]. [Applicant 2] has apparently been able to arrange to obtain an Australian visa to depart Indonesia which demonstrates his ability to navigate the Australian migration system. Further, there are many people with limited English skills who successfully apply for visas on their own behalf. The Tribunal’s assessment is that Ms [Applicant 1’s] delay in applying for a protection visa is indicative, when the Tribunal considers the totality of the evidence, that his claims are not true.
Second, [Applicant 1] gave vague evidence about his gang membership and the harm he suffered at the hands of the gang members, despite being given opportunity from the delegate to provide more detailed information about his gang membership. The Tribunal is not persuaded that [Applicant 1] was unable to respond to the delegate’s request for more information, as evidenced by the fact that he was able to successfully lodge a visa protection visa application, and was able to lodge a review application with the Tribunal.
The Tribunal is not persuaded by [Applicant 1’s] explanation about why he failed to provide the delegate with more information about his claims, which were very broad in the protection visa application form. The Tribunal’s assessment is that [Applicant 1] failed to provide the delegate with the information requested because there was no specifics that could attach to the claims, because the claims were invented by [Applicant 1] in order to be granted a protection visa. Despite being asked for specifics concerning his claims about the gang membership at the Tribunal hearing, [Applicant 1] provided little additional information. This is inconsistent with a person being able to speak about their own lived experiences.
Third, [Applicant 1’s] oral evidence, as limited as it was, concerned one incident where he was assaulted by gang members. He was unable to detail when this occurred, other than to say it was in either 2008 or 2009 (some 5 or 6 years before he left Indonesia) and iti is curious that this one specific incident would not be detailed in the protection visa application form in response to the question about whether he experienced harm in that country, with the form instead simply asserting that he was harmed for sure.
The Tribunal does not accept that this would be omitted from the protection visa application form even if [Applicant 1] was assisted by another person because it is reasonable to expect that one instance to be included in the form. The Tribunal is not persuaded by [Applicant 1’s] explanation that this was not included because he used another person to assist him. The failure to detail the specifics of the incident in the form, in combination with the other concerns the Tribunal has, demonstrates to the Tribunal that the claims were untrue. It makes no sense for either [Applicant 1] to not detail this particular incident to the person assisting him, or for the person assisting him to omit that detail from the protection visa application form.
Fourth, [Applicant 1’s] evidence was contradictory about whether he moved or tried to move to another area in Indonesia to seek safety changed throughout the review. He provided no address history in the protection visa application form to demonstrate that he had moved anywhere, but merely asserted that he ‘moved other places.’ The Tribunal is satisfied that if he had ‘moved to other places’ he would have detailed those other places in his residential history as required by the protection visa application form. It makes no sense for this detail to be omitted from the form when a residential history showing his address changes may corroborate his claims. It was also inconsistent with his oral evidence which was initially that he resided at his family address in Indonesia the whole time he was there.
That evidence only changed when the Tribunal started to explore the absurdity of [Applicant 1] remaining living in the family home, apparently without incident despite the gangsters wishing to harm him. It was then suggested that [Applicant 1] had in fact moved for a period of time and gangsters went to the family home but he was not there. [Applicant 1’s]explanation about why his evidence changed was not persuasive, because he did not address why the evidence changed, but merely repeated that he temporarily moved out and did not go out for very long. The Tribunal is satisfied if there was any truth to his claims, [Applicant 1] would have provided consistent and detailed evidence about all the places he had lived and the time he spent in those places. The Tribunal is satisfied that the reason the evidence was contradictory and subject to change was due to the fact that [Applicant 1] did not move because he was being targeted by gang members.
The Tribunal did not find [Applicant 1] to be an impressive witness about his claimed lived experiences in Indonesia and his claimed reasons for departing Indonesia. The Tribunal is not satisfied that [Applicant 1] was a gang member who was assaulted by the gang and was being sought out by gang members who intended to do him future harm. As the Tribunal does not accept [Applicant 1’s] claimed factual narrative about what occurred in Indonesia, it follows that the Tribunal does not accept that there is a risk of harm to [Applicant 1], or by extension to [Applicant 2], because the Tribunal is not satisfied as to the truth of the narrative. It follows that there is no real risk on return to Indonesia.
[Applicant 2]
Having reflected on the totality of the evidence, the Tribunal is not persuaded that [Applicant 2] is a credible witness about his claimed experiences of harm in Indonesia and his fear of future harm in Indonesia associated with those claimed experiences for the following reasons.
First, it is demonstrable that [Applicant 2] has a flexible approach to the truth, as evidenced by something as basic about whether she had previously been refused a visa to come to Australia (which she had but claimed in the form she had not) and whether she was, as a matter of fact, married at the time she had the delegate interview. The Tribunal listened to the audio recording of that interview, and it is clear that [Applicant 2] did not sound confused by the question about her marital status, and did not blank out as there were no long pauses indicating that [Applicant 2] had no idea what she was saying. The delegate questioning about her relationship status was logical, comprehensive and targeted.
The Tribunal is not persuaded by [Applicant 2’s] explanation about why she told the delegate that she was not in a current relationship and was unmarried, especially when [Applicant 2] cited to the delegate a desire to remain in Australia for a longer period of time so she could return to Indonesia after finding a husband. The Tribunal’s assessment is that [Applicant 2] was willing to tell the delegate an untruth because she saw some advantage in doing so. In circumstances where [Applicant 2] was prepared to engage in telling falsehoods, the Tribunal is satisfied that this demonstrates a flexible approach to the truth and that [Applicant 2] is prepared to say, or not say, whatever she thinks will assist her in obtaining a protection visa.
The Tribunal is also not persuaded by [Applicant 2’s] explanation about why she failed to declare that she had a visa refused. It makes no sense for the person who assisted [Applicant 2] to complete the protection visa application form to randomly select no to this question, nor does it make sense that [Applicant 2] would have another person complete a form, with a host of questions, without any input. Given the issue concerning the employment in the protection visa application form inconsistent with the evidence of employment in the student visa application form, the Tribunal’s assessment is that [Applicant 2] sought to hide the previous student visa refusal because the inconsistent employment history may undermine her protection claims.
Second, [Applicant 2] failed to detail in her protection visa application form the specific instance of violence that she claimed resulted in the end of her relationship, despite the form asking for specific details. [Applicant 2’s] evidence in the protection visa application form was limited to statements about ‘mistreatment’ and ‘violence’ but not accompanied by any specifics.
In the context of the other concerns the Tribunal has, the Tribunal attributes the lack of specificity in the protection visa application form attributable to the fact that [Applicant 2] has not previously been in a relationship with a person named [Partner A] and suffered violence in that relationship.

100. Third, the video recording that [Applicant 2] does not, in the Tribunal’s assessment, demonstrate that she was assaulted. It shows [Applicant 2] running a finger along her arm. It does not, in the context of the other concerns the Tribunal has about [Applicant 2’s] credibility, satisfy the Tribunal that the video is evidence that [Applicant 2] received an injury in the way she claimed.
101. Fourth, the evidence about [Applicant 2’s] employment history provided in her student visa application, as suggested by the delegate during the interview, was inconsistent with the claim that [Applicant 2] was employment at [Employer 1] in Indonesia (which is where [Applicant 2] apparently met [Partner A] as a colleague), meaning that [Applicant 2] was not in a relationship with this person and did not suffer resulting domestic violence.
102. The Tribunal was not persuaded by [Applicant 2’s] explanation about the inconsistent employment provided across the student visa application and the protection visa application. The Tribunal’s assessment, when combined with the other concerns that the Tribunal has, it is [Applicant 2] fabricated the employment at [Employer 1] where she supposedly met [Partner A] to provide a narrative about how the relationship started.
103. Fifth, [Applicant 2] provided inconsistent evidence about whether she had moved, or tried to move to another place to seek safety from [Partner A]. She claimed in the protection visa application form that she did not move and provided her reasons for not doing so. The Tribunal is not persuaded that the person assisting [Applicant 2] would arbitrarily decide to make this declaration on behalf of [Applicant 2].
104. The Tribunal’s assessment is that if [Applicant 2] had moved to a friend’s house after the assault, and [Partner A] had come to that house and taken her back to the place they were living, the change in residential history would have been detailed in the protection visa application form, and [Applicant 2] would have claimed in the form that she had moved without success, because [Partner A] had found her and required her to return to the place they were living together. The Tribunal is not persuaded by the explanation that the failure to declare the move in the protection visa application form was attributed to the person assisting her acting without instruction or that it is attributable to the friend’s place being in the same area.
105. Sixth, [Applicant 2] gave confused evidence about whether she had reported the domestic violence to police. In the protection visa application form, she declared that she sought help from the police station and that was apparently unsuccessful, because [Partner A’s] parents work with the government. That can be contrasted with the oral evidence that [Applicant 2] provided to the delegate and the Tribunal, where she suggested that she approached a policeman who was attending a dispute and asked him about what she should do. It is noted that this police officer did not tell [Applicant 2] that he could not help her because of [Partner A’s] parents, and told her instead that nothing could be done without evidence of bruises. It is therefore even more curious that, with this information provided, that [Applicant 2] would not then go to a police station with evidence of her assault, given she claimed that the video provided demonstrated that she had in fact been assaulted and received injuries.
106. The Tribunal is not persuaded by [Applicant 2’s] explanation about the inconsistency in her protection visa application form and that in her oral evidence. The Tribunal finds it likely that if [Applicant 2] had spoken to a policeman who was attending a disturbance, she would have detailed that in her protection visa application form and not instead made a claim that she had sought help from a police station but that the police protected [Partner A]. The Tribunal is not satisfied that the person who assisted [Applicant 2] would provide a response in the protection visa application form without instruction. The Tribunal comes to this conclusion when assessing the totality of the concerns that it has about [Applicant 2’s] credibility.
107. The Tribunal did not find [Applicant 2] to be an impressive witness about her claimed lived experiences in Indonesia and her claimed reasons for departing Indonesia. The Tribunal is not satisfied that [Applicant 2] was in a relationship with a person named [Partner A] who assaulted her and is looking for her. It follows that as the Tribunal is not satisfied about [Applicant 2’s] claimed factual narrative about what occurred in Indonesia, it follows that the Tribunal does not accept that there is a risk of harm to [Applicant 2], or by extension to [Applicant 1], because the Tribunal is not satisfied as to the truth of the narrative. It follows that there is no real risk on return to Indonesia.
Claims concerning circumstances in Australia as opposed to Indonesia
108. The applicants both claimed that life is easier in Australia for them, and noted that they have a child due to be born in [specified month] and their desire to have more children. They claimed that they would face difficulty accessing IVF in Indonesia because the cost would be prohibitive.
109. The fact that the applicants would not be able to afford IVF in Indonesia does not amount to persecution because of their race, religion, nationality, membership of a particular social group or political opinion. Further, the fact that the applicants would not be able to have IVF in Indonesia because the cost is prohibitive and may struggle to have another child does not mean that the applicants will suffer significant harm as defined by the Act.
110. The fact that the applicant’s claimed that there are more job opportunities in Australia, and that the cost of living is better and that there is adequate health and education in Australia does not equate to the applicant’s facing persecution in Indonesia due to their race, religion, nationality, membership of a particular social group or political opinion. Further, the fact that the applicants will have a better standard of healthcare and education in Australia does not mean that there is a real risk the applicant’s will suffer significant harm as a result of their removal from Australia to Indonesia.
111. The applicants apparently have a history of employment in Indonesia. The Tribunal is not satisfied that the applicant’s will be denied employment in that country from any discriminatory reasons. Further, the DFAT Country Information Report does not suggest that there is no adequate healthcare or education in Indonesia or that the applicant’s would be denied the care available to all Indonesia’s for reasons of persecution or a deliberate policy to cause the applicants harm.
CONCLUSION
Refugee
112. For the reasons given above, the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
113. For the reasons given above, the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
114. For the reasons given above, the Tribunal is not satisfied that either applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act, meaning that both applicants do not satisfy s 36(2)(b) or (c) of the Act.
DECISION
115. The Tribunal affirms the decision dated 3 September 2020 refusing to grant [Applicant 1] a protection visa.
116. The Tribunal affirms the decision dated 31 August 2021 refusing to grant [Applicant 2] a protection visa.
Nathan Goetz

Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

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

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

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

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

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4381

10 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Remedies

Name	Date of Birth	Department reference	Tribunal reference
[Applicant 1]	[Deleted.]	[Deleted.]	2014119
[Applicant 2]	[Deleted.]	[Deleted.]	2112748