2015106 (Refugee)

[2024] AATA 4431

2015106 (Refugee) [2024] AATA 4431 (2 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015106

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:J Horsley

DATE:2 October 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 02 October 2024 at 4:02pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – deliberate vehicle accident – sexual harassment – fear of killing – mental health issues – return visits to Indonesia – fear of Black Magic – trauma – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 425, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of Indonesia, applied for the visa on 30 September 2018.

   CRITERIA FOR A PROTECTION VISA

2. 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, they are 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.

3. 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.

4. 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).

5. 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.

6. If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

7. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE BEFORE THE DELEGATE

   Protection visa application

8. According to the applicant’s Protection visa application, she is [an age]-year-old Indonesian national of ‘Indonesian ethnicity’ and Islamic faith. She was born in Jakarta, Java Region, Indonesia, and raised in Tangerang Selantan, Banten Province, Java Region. The applicant arrived in Australia [in] May 2011 from Indonesia, as the holder of a Higher Education Sector visa (subclass 573) visa, when she was [age] years old.

9. In response to questions in the form in relation to her reasons for claiming protection, the applicant claimed that she left Indonesia because she disagreed with Indonesian government policy of not accepting refugees. She elaborated that, in summary:

   ·she suffered verbal harm but did not seek help from the authorities because they would have harmed her more if she sought their help;

   ·she never relocated within Indonesia because the whole country is controlled by the government;

   ·if she returns to Indonesia, the applicant fears she will ‘get more harmed’ because ‘the situation has not changed’; and

   ·the Indonesian authorities are unable to protect her because ‘they are the ones who will harm me’ and she is unable to relocate because the whole country is controlled by the government.   

10. In support of her Protection visa application, the applicant provided a copy of her Indonesian passport (issued in Melbourne) and a letter from [Hospital 1], dated [in] July 2020, which refers to the applicant being hospitalised in May 2011 (in Indonesian).

    Statement of Claims

11. On 17 July 2020, in response to a request for more information from the delegate under s 56 of the Act, the applicant sent the Department an undated Statement of Claims, in which the applicant claimed:

    ·One month before travelling to Australia in May 2011, while the applicant and her mother were riding on a motorbike, they were hit by a public transport car.

    ·The applicant and her mother were hospitalised, with the applicant sustaining injuries to her right arm and her mother sustaining a broken leg. The driver asked for forgiveness and the applicant’s mother forgave him because it was an accident.

    ·From August to September 2018, when the applicant returned to Indonesia, she found out that the incident in 2011 was not an accident, and that the driver had hit them on purpose.

    ·‘Someone behind it’ [the accident] liked the applicant in high school, but she refused to have a relationship with him. He could not accept that. At the beginning, he would hassle her, but now she does not think she will be able to live in Indonesia anymore.

    ·The applicant fears that she will not be protected by sexual harassment laws in Indonesia, particularly during the Covid-19 pandemic.

    ·The applicant is ‘still discovering all the ways that violence’ she suffered ‘has hurt me, has set my life on the wrong course, and destroyed the normal teenage years and early adulthood.’

    Decision of the delegate

12. As stated above, on 15 September 2020, a delegate of the Minister for Home Affairs refused to grant the applicant a Protection visa. The delegate did not offer the applicant an interview.

13. In essence, the delegate accepted the applicant, and her mother were involved in a vehicle accident, but did not accept that it was an attack because the applicant ‘lived in Indonesia for several years after high school without apparent issue from the boy.’ The delegate also noted that the applicant returned to Indonesia in 2017 and 2018, ‘without apparent issues.’ Therefore, the delegate did not accept that ‘a former classmate is hostile to her and caused the accident.’

14. The delegate accepted that the applicant objects to Indonesia not being a signatory to the Refugee Convention. However, the delegate stated that there was no evidence to suggest the applicant would come to the attention of the Indonesian authorities or be at risk of harm for these reasons. The delegate noted that the applicant had not provided more detail on her claims in this regard, as requested prior to the decision. Therefore, the delegate assessed that there is not a real chance the applicant will suffer serious harm for reasons of her actual or imputed political opinion.

15. Under the complementary protection criterion, the delegate assessed that the applicant ‘has no significant profile that would draw attention from state or non-state actors in Indonesia’, and that, therefore, she would not face a real risk of significant harm if she were returned to Indonesia.

16. Accordingly, it was assessed that Australia does not have protection obligations to the applicant under ss 36(2)(a) and (aa) of the Act.

    CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL

    Procedural history

17. On 10 October 2020, the applicant applied for a review of the delegate’s decision and provided a copy of that decision to the Tribunal. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

18. On 11 July 2024, the Tribunal sent the applicant via email an invitation to attend a hearing under s 425 of the Act, scheduled for 2 August 2024. The invitation requested the applicant complete and return an enclosed ‘Response to Hearing Invitation’ within 7 days.

19. On 22 July 2024, the applicant sent an email to the Tribunal, in which she apologised for not submitting the ‘Response to Hearing Invitation’, but nonetheless confirmed her attendance at the hearing. She also stated that she will bring documents with her to the hearing, and requested the Tribunal take evidence from her brother, [Brother A], who will attend the hearing with her.

20. On 2 August 2024, the applicant appeared before the Tribunal to give evidence and present arguments. An interpreter in the Indonesian and English languages assisted the applicant in presenting her evidence. The applicant’s brother, [Brother A], also appeared as her witness.

21. Before the hearing commenced, the applicant provided the Tribunal with the following:

    ·Indonesian passport [copied and returned to the applicant];

    ·USB stick containing 2 x photographs and 2 x videos of red petal flowers on the ground outside the gate of a house [the contents were copied and uploaded to the applicant’s file, and the USB was left at reception for her collection at the conclusion of the hearing]; and

    ·Letter from [Hospital 1], dated [in] July 2020, which refers to the applicant being hospitalised in May 2011 (in Indonesian) [this is a duplicate letter, which the applicant had already provided to the delegate – see above].

    Summary of oral evidence of the applicant

    Procedural issues

22. At the outset of the Tribunal hearing on 2 August 2024, the Tribunal requested for the applicant’s brother to leave the hearing room. During his absence, the Tribunal asked the applicant if she would like her brother to remain inside the hearing room or wait outside the hearing room for the remainder of the hearing. The applicant requested that her brother remain inside the hearing room. The Tribunal clarified with the applicant that it would be asking her many personal questions and wanted her to feel comfortable to express herself, and checked again whether she would like her brother in the room. The applicant repeated that she would prefer that her brother remain inside the hearing room. The applicant’s brother, therefore, re-entered the hearing room and remained inside for the remainder of the hearing.

23. During preliminary introductory remarks made by the Tribunal, the applicant responded to questions in English and did not use the services of the interpreter. The Tribunal clarified with her at the outset of the hearing what her preference is, in terms of speaking in English or using the services of the interpreter. The applicant stated that she would only like to use the interpreter when she needed to. On occasion throughout the hearing, the applicant used the services of the interpreter to express herself. There are no indications that the applicant had any difficulty expressing herself during the hearing, and the Tribunal confirmed with her throughout the hearing that she could understand the questions being asked and that she could understand and communicate with the interpreter.

24. Below is a summary of the applicant’s oral evidence during the Tribunal hearing.

    Background

25. The applicant is [an age]-year-old Indonesian national of ‘Indonesian ethnicity’ and Islamic faith. While the applicant was born and raised as a Muslim, she has not strictly followed her faith for the past few months. The applicant was born and raised in Jakarta, Indonesia.

26. The applicant’s parents are both unemployed and reside in Jakarta. They receive financial support from the applicant’s uncles, and the applicant also financially supports her parents. The applicant has one brother, [Brother A], who resides in Australia on a Student visa. The applicant’s [specified relatives] reside in Australia and are Australian citizens. The applicant’s [specified relative] arrived in Australia in the 1980s or 1990s. The applicant’s [other relative] arrived in Australia around 20 years ago and is married to an Australian citizen.

27. The applicant considers herself to be of ‘Indonesian ethnicity.’ Her father is of Betawi ethnicity, and her mother is of Javanese ethnicity. The applicant heard that her great grandmother was of Chinese ethnicity, but the applicant and her family do not follow any Chinese cultural practices or traditions.

28. In [specified year], the applicant graduated from high school. Following her graduation, she worked at a [business 1] until early 2010. From 2010 to early 2011, she worked in data entry for a company, before leaving Indonesia for Australia.

    Experiences in high school

29. While in high school, a fellow student, [Mr A], who was also a friend of the applicant’s brother, wanted to start a relationship with the applicant. The applicant does not know his surname or background. She thinks he is of Chinese ethnicity and follows the ‘Chinese or Buddhist’ faith because he would not attend classes on Islamic religious instruction during high school.

30. [Mr A] asked her to be in a relationship with him in Year 10 and Year 11 on several occasions. Each time, the applicant refused, saying she already had a boyfriend. In Year 10, the applicant took [Mr A’s] approaches as a joke, but in Year 11 and Year 12, he seemed more frustrated and angrier that she did not want to be in a relationship with him. In Year 12, he asked if she wanted to be a ‘study buddy’ but the applicant refused, saying she already had a ‘study buddy.’ During class, he often tried to sit close to her, which made her feel uncomfortable.

31. After graduating from high school, she sometimes bumped into [Mr A] on the street, and they would say hello to each other. On these occasions, the applicant and [Mr A] would usually be with their respective friendship groups. On one occasion, one of the applicant’s friends remarked how [Mr A] was staring at her. The applicant told her friend to ignore it.

    Accident in 2011

32. In mid-2011, the applicant was riding her scooter with her mother on the back. As her mother was behind her, the applicant was driving slowly. In front of her was a bread cart. All of a sudden, a public transport SUV approached in the opposite direction and smashed into the applicant’s scooter and the bread cart. The driver attempted to drive away, but bystanders prevented him from doing so. The driver approached the applicant and her mother and apologised, saying that he was scared because he had financial difficulties. The applicant’s mother forgave the man, thinking it was an accident.

33. The applicant and her mother were admitted to hospital for one day. The applicant’s mother sustained a broken leg, while the applicant had an injury to her arm, which made it numb. Since the accident, the applicant’s mother has had difficulty walking and standing for long periods of time.

    Leaving Indonesia and experiences in Australia

34. Around one month after the accident, in May 2011, the applicant left Indonesia and travelled to Australia on a Student visa. In Australia, the applicant studied [specified courses]. She began a [further course] but did not graduate.

35. In Australia, the applicant has consistently worked since her arrival in Australia, primarily in [specified businesses] and as a retail assistant.

36. On 30 September 2018, the applicant applied for a Protection visa, with the assistance of a migration agent, Michael Shou. The applicant paid this agent around $5,000 to 6,000 (AUD) to prepare and lodge the Protection visa application form. However, he did not ask her any questions about her experiences in Indonesia, why she left the country or why she is unable to return. At the Tribunal hearing, the applicant stated that she was unaware of what is written in her application, in terms of her claims for Protection. The agent did not read the answers back to her or interpret the form to her. The applicant only found out that the delegate refused her application for a Protection visa in 2023, when her employer asked her to update her details. She then discovered that a delegate had refused her application and that the agent applied on her behalf for a review of the delegate’s decision.

37. At hearing, the applicant expressed a preference for her contact details to be updated to her email address, not that of her former migration agent. The Tribunal notes that neither the Department nor the Tribunal received official notification that Michael Shou acted as the applicant’s representative. The Tribunal informed the applicant to submit a Form MR6 ‘Change of Contact Details’, and gave her a copy of the form, which she stated she would complete at the conclusion of the hearing.

38. In 2011 and 2012, while the applicant was in Australia, [Mr A] occasionally messaged her on WhatsApp to say hello. She usually kept her responses brief, and sometimes did not respond to him at all. More recently, the applicant blocked [Mr A] on WhatsApp and social media, for the reasons outlined below.

    Return to Indonesia in 2017

39. In around September 2017, the applicant returned to Indonesia to attend her friend’s wedding. As she was busy getting ready for the wedding, the applicant did not leave her home much, and did not inform all her friends that she had returned to Indonesia.

    Return to Indonesia in 2018

40. From August to September 2018, the applicant returned to Indonesia for around 3 weeks for a holiday to visit family and friends.

41. During this return, on around 3 to 4 occasions, she caught up with a group of 2 or 3 friends, and they usually went to a café together. One of her friends had invited [Mr A] to each of these catch ups. The applicant, her friends, and [Mr A] reminisced about their time in high school, and talked about their classes, their teachers, and fellow students.

42. During one of these catch ups, [Mr A] asked the applicant if she was single now, and asked her when she would return to live in Indonesia permanently. The applicant responded that she is busy with life in Australia and is not considering marriage any time soon and said that she is not sure when she will return to Indonesia. In response, [Mr A] said that he would be there for the applicant, when she decided to return. The applicant took it as a joke and ‘laughed it off.’

1. Since these meetings, the applicant has not had any contact with [Mr A], including after she returned to Australia.

   Discovery that [Mr A] was responsible for the 2011 accident

2. In 2018, after her return to Australia, the applicant’s brother informed her that he heard from a friend named [Friend A] that [Mr A] was responsible for the car accident in 2011. The applicant’s brother spoke with his friend, [Friend A], who told the applicant’s brother that he had a conversation with [Mr A], and they were talking about the applicant and the car accident in 2011. [Friend A] told the applicant’s brother that [Mr A] was behind it. The applicant is not sure if [Mr A] paid the driver to crash into her and her mother or whether he used Black Magic against them.

3. Since discovering this news, the applicant believes that [Mr A] is ‘indirectly’ responsible for the accident. She believes this based on what [Friend A] told her brother. She does not believe [Mr A] was directly responsible for the accident because he was not the driver.

4. After hearing this news, the applicant never contacted [Mr A] and he has never attempted to contact her. The applicant has since blocked [Mr A] on social media and WhatsApp.

   Death of brother’s friend

5. In 2019, the applicant’s brother’s friend, [Friend A], was hospitalised with an unknown illness. The doctor at hospital did tests and could not discover what was wrong with him. A short time later, [Friend A] died. The applicant believes that [Mr A] is responsible for [Friend A’s] death and that he used Black Magic on [Friend A] because [Friend A] told the applicant’s brother about the conversation they had together about the 2011 car accident.

   Flowers left at entrance of parents’ home

6. On 24 June 2024, the applicant’s cousin’s wife informed her that the petals of red flowers were scattered out the front of her parent’s home. The applicant’s cousin’s wife took photographs and videos of these flowers and sent them to the applicant, who in turn gave them to the Tribunal on the morning of the hearing (see above).

7. The applicant ‘has a feeling’ that [Mr A] put the flowers there. According to the applicant, ‘it might be true, it might not be true.’ She believes that he was responsible indirectly for the car accident in 2011 and [Friend A’s] death in 2019, so she assumes that [Mr A] also put flowers in front of her parents’ home as a warning. The types of flowers that were left at her parents’ home are usually given out at funerals.

8. Early in the hearing, the applicant stated, ‘I don’t believe in Black Magic. I kind of believe and not, but it happens to several people in Indonesia.’ Later in the hearing, the applicant clarified that she does not think there is any logical or scientific proof of Black Magic, but she believes in its existence from a spiritual point of view. Her parents are pious Muslims, they believe in Black Magic, and they have the ‘Sixth Sense.’

   Clarification of Statement of Claims

9. As outlined above, in her Statement of Claims, submitted to the Department in 2020, the applicant stated, ‘I am still discovering all the ways that violence I suffer has hurt me, has set my life on the wrong course, and destroyed the normal teenage years and early adulthood that everyone deserves.’

10. When questioned about this during the Tribunal hearing, the applicant stated that what she meant is that she is traumatised from the motorbike accident and can no longer ride motorbikes. She said the experience destroyed her normal life because she cannot ride motorbikes anymore. Due to [Mr A’s] actions, as described above, the applicant has insecurity and difficulty trusting people.

    Clarification of claims in Protection visa application

11. Given that the applicant was unaware of the claims written in her Protection visa application form, the Tribunal summarised them for her. The Tribunal did so in order to determine whether she had any comments or whether she maintained these claims for protection.

12. In response to the claim that she has a ‘pro-refugee’ political opinion and disagreed with Indonesian government policy, the applicant responded, ‘I don’t know about that.’ On the ‘pro-refugee claims’, the applicant stated that she is an Indonesian citizen and lived there for [number] years before travelling to Australia. She expressed confusion as to why the migration agent would write that claim, rhetorically asking ‘why would I look for refugees in Indonesia, when I am a citizen?’

13. In response to the claim in the form that she faced past harm in the form of ‘verbal harm’, the applicant responded that the only verbal harm she experienced was at the hands of her strict parents because ‘we are Asian, and our parents are strict, so sometimes there is verbal harm but not in a bad way, I think it makes us stronger.’

    Fears of harm

14. The applicant is fearful of returning to Indonesia, because she believes that [Mr A] will use Black Magic against her to indirectly harm her. She fears that [Mr A] will curse her with Black Magic, and she might die as a result.

15. The applicant fears that if she dies from Black Magic, her mother will die from Black Magic shortly after her. This happened to a friend of the applicant’s, who died in a car accident and his mother died around 4 months later.

16. The applicant believes in the curse of Black Magic because after her own car accident in 2011, her mother’s leg was broken, and then the applicant’s aunt died of [a medical condition] shortly afterwards. Following this, her grandmother passed away around 6 to 7 months later. The applicant stated that ‘it might not be related but I don’t want it to happen.’

17. The applicant fears that the Indonesian authorities will not protect her from [Mr A] because she will not be able to prove that he had used Black Magic against her. The applicant fears that [Mr A] will be able to find her wherever she resides in Indonesia because some of her friends might visit her, and word will spread where she is living.

18. This happened in 2018, when she returned to Indonesia. She told a few friends that she had returned home for a visit, and then all of a sudden [Mr A] walked past her home. The applicant did not see him walking past her home, but one of her friends told her about it. The applicant does not know how her friend knew that [Mr A] walked by her home, but she assumes that [Mr A] told them he did that.

    Summary of oral evidence of witness – the applicant’s brother

19. Below is a summary of the applicant’s brother’s oral evidence during the Tribunal hearing. For ease of reading, the applicant’s brother is herein referred to by his first name, [Brother A].

20. [Brother A] arrived in Australia [in] December 2022 on a Student visa, and is studying to become [an occupation 1]. He is friends with [Friend A] and [Mr A]. [Friend A] told [Brother A] in 2018 that he had a conversation with [Mr A] about the car accident in 2011. [Brother A] was not present during the conversation between [Friend A] and [Mr A]. [Friend A] told [Brother A] that [Mr A] ‘said something like, “why didn’t the driver just speed up and crash into her [the applicant] until she died.”’

21. [Brother A] last had contact with [Mr A] in 2016. There is no particular reason why [Brother A] did not have contact after 2016, but usually [Brother A] would only see [Mr A] when [Friend A] invited [Mr A].

22. Upon discovering the news from [Friend A], [Brother A] informed his sister (the applicant). [Brother A] never thought of confronting [Mr A] because he believed that [Mr A] would just lie anyway.

23. [Brother A] never reported [Mr A] to the police because in Indonesia, you need to pay the police money in order for them to take complaints seriously.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality and receiving country

25. The applicant provided a copy of her Indonesian passport in support of her application for a Protection visa. The applicant has consistently stated that she is an Indonesian citizen and does not hold citizenship of any other country. Given this supporting documentation, and the applicant’s consistent statements on this claim, the Tribunal accepts that the applicant is a citizen of Indonesia. The Tribunal has assessed the applicant’s claims against Indonesia as her country of nationality and the receiving country.

    Third country protection

26. According to s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. There is no information before the Tribunal to indicate that the applicant is a national of another country. There is no evidence to suggest that the applicant has any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.

    Abandoned claims – pro-refugee political opinion

27. At the conclusion of the hearing, the Tribunal informed the applicant that during the hearing, she had clarified that her former migration agent wrote her claims in her Protection visa application form, and she did not know what was written. The Tribunal informed her that during the hearing she also claimed that her former migration agent did not read the answers back to her. The Tribunal informed her that during the hearing, the applicant had said that she does not have a ‘pro-refugee’ political opinion and said that she does not oppose the Indonesian government’s policy on refugee issues.

28. The Tribunal informed the applicant that, for these reasons, the Tribunal may not accept the claims in her Protection visa application, that is, that she has a political opinion in support of refugees in Indonesia and/or a political opinion against the Indonesian authorities for their treatment of refugees. The Tribunal asked if she would like to comment, to which she responded in the negative.

29. Given the circumstances of how the applicant’s Protection visa application form was prepared, and that the applicant abandoned these claims at the hearing, the Tribunal does not accept that the applicant has (or has ever held) a political opinion in support of refugees in Indonesia and/or a political opinion against the Indonesian authorities for their treatment of refugees. The Tribunal finds that these claims were manufactured by the applicant’s former migration agent, without her knowledge. As such, the Tribunal will not consider these claims further.

    Harm from ex-classmate

30. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. The Tribunal is not required to accept uncritically any and all the allegations made by an applicant.[1]

    [1] MIEA v Guo (1997) 191 CLR 559 at 596; and Prasad v MIEA (1985) 6 FCR 155 at 169-70.

31. At the conclusion of the hearing, the Tribunal informed the applicant that it may not accept that [Mr A] was responsible, either directly or indirectly, for the car accident in 2011 for the following reasons:

    ·[Mr A] was not the driver of the public transport SUV that crashed into her;

    ·The only evidence the applicant, and her brother, provided about why they think [Mr A] is responsible for the accident is based on second-hand information arising from a conversation between two of the applicant’s brother’s friends, [Friend A] and [Mr A]; 

    ·Neither the applicant or her brother was present in the conversation between [Friend A] and [Mr A];

    ·[Mr A] told [Friend A] that he had wished she was more seriously hurt, but did not claim responsibility, say that he paid someone to crash into her, or make any mention of the use of Black Magic.

32. The Tribunal asked if the applicant would like to respond to this information. In response, the applicant stated that if she returns to Indonesia, she fears that [Mr A] will use Black Magic against her, and fears that the authorities will not protect her from Black Magic.

33. The Tribunal has considered the applicant’s response. However, her response does not adequately respond to the concerns raised at the hearing. The Tribunal does not accept that [Mr A] was responsible, either directly or indirectly, for the car accident in 2011. The applicant’s belief that [Mr A] was responsible is based on speculation and inferring intention from a second-hand conversation that neither she nor her brother were part of.

34. In other words, the applicant’s belief that [Mr A] was responsible (either directly or indirectly) for the accident in 2011 is solely based on a conversation in 2018 between [Mr A] and one of the applicant’s brother’s friends, [Friend A]. [Friend A] told the applicant’s brother that [Mr A] had told him something along the lines of, ‘why didn’t the driver just speed up and crash into her until she died.’ Even if the Tribunal accepted that this conversation happened, and even if it accepted that [Mr A] made this remark to [Friend A], and even if the Tribunal accepted that [Friend A] correctly recalled and relayed that statement to the applicant’s brother, the Tribunal does not accept that this statement reveals that [Mr A] was responsible (either directly or indirectly) for the car accident in 2011. He did not claim responsibility for the accident. He did not claim that he hired the driver to crash into the applicant and her mother. He did not make any mention of the use of Black Magic.

35. The Tribunal finds that the applicant’s (and her brother’s) claims of [Mr A’s] responsibility for the accident were vague, evasive, and limited in detail. The Tribunal finds that the applicant (and her brother) have speculated that [Mr A] is responsible for the car accident, based on a second-hand conversation, which in and of itself, did not reveal that [Mr A] was responsible or had used Black Magic.

36. For the above reasons, the Tribunal does not accept the applicant’s, or her brother’s claims, that [Mr A] was responsible for the accident, either directly or indirectly, or that he has ever used Black Magic against her or her family members. While the Tribunal accepts that the applicant and her mother were involved in a motorcycle accident in 2011, the Tribunal finds it was merely an accident and it had no connection whatsoever, either directly or indirectly, to [Mr A] or the use of Black Magic.

37. At the conclusion of the hearing, the Tribunal informed the applicant that it may find that the flowers left outside her parents’ home could have been left by anyone, and there are no indications that they were left by [Mr A]. The Tribunal informed the applicant that it may not accept that these flower petals were a threatening sign. The Tribunal asked the applicant if she would like to comment on this.

38. In response, the applicant said that some people believe in Black Magic and some people do not. She said it might be [Mr A] or it might be someone else, but she has a ‘strong feeling.’ She said it could have been [Mr A] that left the flowers, or it could have been someone else. She said that most people would just look at the flowers and think they are nothing special and have no power, but according to her spiritual beliefs, ‘it might have some meaning behind it.’

39. The Tribunal has considered the applicant’s response. However, the Tribunal does not accept that the flowers were placed by [Mr A] or by someone on his behalf. As stated to the applicant during the hearing, the Tribunal finds that the flowers could have been left at the entrance of her parent’s home by anyone, and there are no indications or evidence before the Tribunal to suggest they were placed by [Mr A]. The Tribunal does not accept that the flowers were placed at her parents’ home as a threat against the applicant. On the applicant’s own evidence, she does not know who placed the flowers at her parent’s home and believes [Mr A] is responsible because she has a ‘strong feeling.’ The Tribunal finds this is mere speculation, and when considering the findings made below about the lack of adverse interest [Mr A] has in the applicant, the Tribunal does not accept the applicant’s claims in this regard.

40. At the conclusion of the hearing, the Tribunal informed the applicant that it may accept that her brother’s friend, [Friend A], died from natural causes but may find that his death has no connection to [Mr A] or Black Magic. The Tribunal informed the applicant that it may not accept that [Mr A] would harm [Friend A], including by using Black Magic, simply because [Friend A] told the applicant’s brother about a conversation they had together. The Tribunal asked the applicant if she would like to comment on that information.

41. The applicant responded that [Friend A] was ‘suddenly ill’ and died ‘like out of nowhere.’ She explained that he was taken to a doctor and ‘hurt everywhere’ but the doctors and hospital could not discover what was wrong with him. She stated that [Mr A] maybe used Black Magic against [Friend A] ‘because he wanted to eliminate any witnesses.’ She stated that [Mr A] ‘may look good from the outside, but the dark side he did no one knows.’

42. The Tribunal has considered the applicant’s responses. However, above, the Tribunal found that [Mr A] was not responsible (either directly or indirectly), for the accident in 2011, and finds below that [Mr A] has not held and does not currently hold any adverse interest in the applicant. As stated above, the applicant’s belief that [Mr A] used Black Magic against her and wants to harm her in future is based on a conversation her brother had with a friend, which in turn is based on a conversation that friend had with another friend. While the Tribunal heard corroborative oral evidence from the applicant’s brother about this conversation, the evidence generally was vague and evasive. The Tribunal does not accept that [Mr A] would retaliate against [Friend A] by using Black Magic against him, causing [Friend A]’s death, because [Friend A] revealed a conversation they had together to the applicant’s brother.

43. For the above reasons, the Tribunal does not accept the applicant’s claims that [Mr A] was responsible (either directly or indirectly, including through the use of Black Magic) for the death of [Friend A], due to [Friend A] revealing a conversation he had with [Mr A] to the applicant’s brother.

44. Despite the findings made above, the Tribunal does accept the applicant’s claim that during high school, [Mr A] may have wanted a relationship with her. Therefore, the Tribunal has considered whether there is a real chance that [Mr A] will harm the applicant for refusing to have a relationship with him, if she returns to Indonesia now or in the reasonably foreseeable future.

45. The applicant claimed to have graduated from high school in [year]. The applicant claimed that from [that year] to 2011 (when she departed Indonesia for Australia), the applicant bumped into [Mr A] a few times on the street. She did not give evidence that he pursued her or wanted a relationship with her during these years.

46. The applicant’s claims about the timing and length of her return trips to Indonesia were consistent with the Department’s Movement Records. These indicate that the applicant departed Australia [in] September 2017 and returned to Australia [later in] September 2017; and that she departed Australia [in] August 2018 and returned to Australia [in] September 2018.

1. During the return trip in 2018, the applicant claimed to have met with [Mr A] on several occasions along with other friends. However, she did not give evidence that he said he wanted a relationship with her. According to her own evidence, [Mr A] simply asked her if she was single, when she was returning to Indonesia, and said that he would be there for her when she did return. Based on the applicant’s own evidence, in the past 15 years, [Mr A] has not done anything to indicate that he wants to be in a relationship with the applicant. He has not threatened, harmed, harassed, or hassled her or given any indication that he has used Black Magic against her.

2. Even though [Mr A] told the applicant that he would ‘be there for her’, if she returned to Indonesia, this does not suggest that he wanted to have a relationship with her and does not suggest that he had any motivation to harm her in future. The Tribunal notes the applicant was on relatively friendly terms with [Mr A], having seen him in 2010, 2011, communicated with him while she was in Australia, and 3 to 4 times in 2018. The Tribunal also notes that the applicant’s brother was friends with [Mr A].

3. The applicant did claim that [Mr A] walked past her home in 2018. However, when questioned about this further during the hearing, the applicant clarified that she never saw [Mr A] walk past her home. She said that one of her friend’s told her about it. When asked how her friend knew that [Mr A] walked past her home, the applicant stated that she does not know, but assumes [Mr A] told her friend. The Tribunal does not accept the applicant’s claims in this regard. The Tribunal finds the applicant’s claims in this regard to be vague and evasive and finds her belief that [Mr A] walked past her home is based on mere speculation. For these reasons, as well as the reason’s above about [Mr A’s] past conduct and interactions with the applicant, the Tribunal does not accept that [Mr A] walked past her home in 2018. Even if [Mr A] did walk past her home in 2018, this in and of itself does not suggest that he had any motivation or interest in harassing or harming her.

4. At the conclusion of the hearing, the Tribunal informed the applicant that she had expressed a fear of harm at the hands of [Mr A] because she refused to have a relationship with him. The Tribunal informed the applicant that it may not accept there is a real chance that [Mr A] would harm her now or in the reasonably foreseeable future, for the following reasons:

   ·There has been a significant passage of time since she refused to have a relationship with [Mr A], the last time being in [year];

   ·Since that time, the applicant has met with [Mr A] on several occasions, bumping into him after high school in 2010 and 2011, and around 3 to 4 times in 2018, and that, during these encounters, he never harmed her, threatened her, or threatened to harm her in future;

   ·While [Mr A] made contact with the applicant in 2010 and 2011, while the applicant was in Australia, he simply asked how she was, and did not make any threats against her or threaten to harm her in future;

   ·The applicant has not had any contact with [Mr A] since she saw him in Indonesia in 2018, which is some 6 years ago, which the Tribunal may find is a significant period of time; and

   ·The Tribunal may not accept that [Mr A] would be angry or upset with the applicant for her refusal to have a relationship with him some 15 years ago.

5. The Tribunal informed the applicant that for these reasons, the Tribunal may find that there is not a real chance that [Mr A] would have any motivation or interest in harming her for any reason. The Tribunal asked the applicant if she would like to comment on this information. The applicant responded that if she returns, [Mr A] may use Black Magic against her, and the Indonesian authorities will be unable to protect her. The Tribunal clarified that it may find that there is not a real chance that [Mr A] will harm her for any reason, meaning that he would have no interest or motivation to use Black Magic against her. In response, the applicant stated, ‘we never know what will happen.’

6. The Tribunal has considered the applicant’s responses. While the Tribunal accepts the applicant’s general statement that ‘we never know what will happen’, this does not adequately respond to the abovementioned concerns raised during the hearing. For example, the applicant did not explain why [Mr A] would continue to have a motivation to harm her, including through the use of Black Magic, due to her refusal to have a relationship with him 15 years ago. She did not respond to the concern that during the encounters she has had with [Mr A] since [year] (as described above), he has never harmed her or threatened to harm her for any reason.

7. The Tribunal does not accept that [Mr A] had or has any adverse interest in the applicant or wanted or wants to harm her for any reason, including for rejecting his advances or refusing to have a relationship with him 15 years ago. The Tribunal finds that there has been a significant passage of time since the applicant finished high school and does not accept that [Mr A] would have any motivation to harm her or retaliate against her now or in the reasonably foreseeable future. For the same reasons, the Tribunal does not accept that [Mr A] used Black Magic against the applicant’s other family members, resulting in the death of her aunt from [a medical condition] or the death of her grandmother some 6 to 7 months later. The applicant, on her own evidence, stated ‘it might not be related but I don’t want it to happen.’ The Tribunal finds that the death of her aunt and grandmother are unrelated, and that they died of natural causes, not as the result of Black Magic done by [Mr A].

8. For the reasons outlined above, the Tribunal finds there is not a real chance that [Mr A] would harm the applicant now or in the reasonably foreseeable future, including through the use of Black Magic, for her refusal to have a relationship with him. The Tribunal finds that [Mr A] would have no motivation and no interest in harming the applicant for any reason if she returns to Indonesia now or in the reasonably foreseeable future.

9. Finally, the applicant claimed that as a result of the motorbike accident in 2011, she is traumatised and can no longer ride motorbikes. While the Tribunal accepts that being involved in a motorbike accident in 2011 may have left the applicant fearful of riding motorbikes in future, the Tribunal does not accept that this would amount to ‘serious harm’ for the purposes of s 5J(5) of the Act.

   Ethnicity and religion

10. The applicant has not claimed or expressed any subjective fears of harm for reasons of her ethnicity and/or religion. Therefore, she does not satisfy the criteria in s 5J(1)(a) of the Act, in that, she does not fear persecution for these reasons. Even if the Tribunal accepted (which it does not) that she raised subjective fears of harm for reasons of her ethnicity and/or religion, the Tribunal does not accept there is a real chance the applicant will face serious harm for reasons of her ethnicity and/or religion if she returns to Indonesia, now or in the reasonably foreseeable future.

11. The applicant claimed that her father is of Betawi ethnicity, and her mother is of Javanese ethnicity, and that she considers herself to be of ‘Indonesian ethnicity.’ She claimed that her great grandmother was of Chinese ethnicity but stated that her family do not follow any Chinese cultural practices or traditions and do not view themselves as having Chinese ethnicity. The applicant has not claimed to have faced any past harm, including discrimination or harassment or differential treatment, for reasons of her ethnicity or Chinese heritage (on her great grandmother’s side).

100.   According to DFAT, ‘40 per cent of the population was Javanese, 15 per cent Sundanese, and 3.7 per cent Malay.’[2] The Minority Rights Group stated in 2019 that the Betawi ethnic group comprises 2.9% of the population.[3] The Tribunal could not locate any country information to suggest that persons of Javanese and/or Betawi ethnicity face discrimination or harassment, either societally or officially, for reasons of their ethnicity. In July 2024, DFAT stated that Indonesia is ‘one of the world’s most ethnically diverse countries.’[4] DFAT also stated that it is ‘not aware of a pattern of incidents of official discrimination based on race or ethnicity.’[5]

[2] DFAT, Country Information Report: Indonesia, 24 July 2023, at [3.2].

[3] Minority Rights Group, Indonesia, June 2019, available at:

[4] DFAT, Country Information Report: Indonesia, 24 July 2023, at [3.1].

[5] Ibid, at [3.5].

101.   On the basis of the above country information, the lack of subjective fear of harm for reasons of her ethnicity, and there being no claims or evidence of past harm, including discrimination or harassment, the Tribunal finds there is not a real chance the applicant will face serious harm for reasons of her ethnicity if she returns to Indonesia now or in the reasonably foreseeable future.

102.   The applicant has consistently claimed that she follows the Islamic faith. During the hearing, she clarified that she does not pray every day. She stated, however, that she still considers herself to be a Muslim and does celebrate Islamic holidays and occasions, such as Eid al-Fitr, for example.

103.   According to DFAT, ‘Indonesia is the world’s largest majority Muslim country, by population. According to the most recent census in 2010, approximately 87.2 per cent of the population is Muslim (almost all of whom are Sunni).’[6] While DFAT assessed that ‘…a person who is openly atheist would face a moderate risk of societal and official discrimination and violence’, the applicant has not claimed to be atheist and there is no information or evidence before the Tribunal to suggest that she is an atheist. The Tribunal could not locate any country information to suggest that Muslims who do not pray every day are subjected to harm, discrimination or harassment. Further, the applicant has not claimed to have faced any past harm, including discrimination or harassment or differential treatment, for reasons of her religion.

[6] Ibid, at [3.18].

104.   On the basis of the above country information, the lack of subjective fear of harm for reasons of her religion, and there being no claims or evidence of past harm, including discrimination or harassment, the Tribunal finds there is not a real chance the applicant will face serious harm for reasons of her religion (or for reasons that she does not pray every day) if she returns to Indonesia now or in the reasonably foreseeable future.

Complementary protection

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

106.   In considering whether there is a real risk the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Indonesia, the Tribunal has taken into account MIAC v SZQRB, where the Full Federal Court found that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[7]

[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

107.   The Tribunal found above that there is not a real chance the applicant would be harmed for reasons of her ethnicity and/or religion. The Tribunal also found that there is not a real chance that her ex-classmate, [Mr A], would harm her or have any adverse interest or motivation to harm her for any reason. It follows that the Tribunal finds that there is not a real risk that she would be significantly harmed in Indonesia for these reasons.

108.   ‘Significant harm’ is exhaustively defined in s 36(2A). The applicant has not claimed she will be tortured or subjected to the death penalty if returned to Indonesia. The definitions of arbitrary deprivation of life; cruel or inhuman treatment or punishment and degrading treatment or punishment each require the harm or punishment be intentionally inflicted on a person. While the applicant has claimed that her ex-classmate, [Mr A], will intentionally seek to harm her, including through the use of Black Magic, the Tribunal did not accept these claims.

109.   Having considered all of the applicant’s claims, individually and cumulatively, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment as a necessary and foreseeable consequence of her being removed from Australia to Indonesia. 

CONCLUSION

110.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

111.   The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

1. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

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

J Horsley
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.

…