2100914 (Refugee)

2100914 (Refugee) [2024] AATA 4159 (3 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2100914
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Victoria Price
DATE:3 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 03 September 2024 at 2:03pm

CATCHWORDS
REFUGEE – Protection Visa – Indonesia – fears harm from loan sharks and debt collectors – a victim survivor of family violence perpetrated by her husband – a member of a particular social group– women in Indonesia – effective protection measures are not available for the harm faced by the applicant – applicant’s fear of persecution is well-founded – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65, 423, 424, 499
Migration Regulations 1994, Schedule 2

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

The applicant is a female, aged [age]. She stated that she is a citizen of Indonesia, of Balinese ethnicity, and is an adherent of the Hindu faith.
The applicant arrived in Australia on [date] March 2019. She lodged an application for a protection visa with the Department of Home Affairs (the Department) on 3 June 2019.
On 27 January 2021 the delegate of the Minister refused to grant the visa to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act), finding she did not satisfy the requirements of s.36(2) of the Act. This is an application for review of that decision.
The applicant appeared before the Tribunal on 6 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
CLAIMS AND EVIDENCE
The applicant’s claims set out in her protection visa application were as follows:
·The applicant’s business in Indonesia went bankrupt and she got could not repay her debts.
·She borrowed money from loan sharks and debt collectors visited her house and threatened to kill her.
·If she returns to Indonesia, she will be persecuted by debt collectors.
At the Tribunal hearing the applicant confirmed her identity and familial and biographical information. She provided information about her background in Indonesia and raised additional claims for protection. Specifically, she claimed that she is a victim survivor of family violence perpetrated by her husband and fears he will harm her on return. Her evidence is discussed below.
Evidence regarding the applicant’s background
The applicant was born in Bali and resided there until her departure from Indonesia. She has two brothers and a sister. Her father passed away, but her mother continues to reside in Bali, with her younger brother and her sister. Her elder brother resides in Denpasar.
The applicant completed primary and secondary school in Bali and then undertook a three-year [diploma], also in Bali. [After] completing her diploma she worked as in a [factory].
The applicant was married in August 2007 and has two children from the relationship. Her eldest son was born in [year] and her youngest in [year]. She is separated, though not divorced, from her husband and her children reside with her mother. She is in regular contact with her children and also speaks to her mother and sister.
In Australia, the applicant has been employed in farm work and at a [factory]. She currently works in a [company] in [an] area. She is employed on a causal basis and has been working there for about two years. She resides with some friends, renting a room in a share house.
Evidence relating to applicant’s protection claims.
The applicant came to Australia to escape family violence from her husband. He was abusive towards her, physically, financially, and emotionally, throughout their marriage. He hit her whenever he was angry, which was often. On one occasion he hit her during her pregnancy, and she almost lost her baby.
She had to leave her employment at the [factory] after the birth of her first child and was solely reliant on her husband’s financial support. He often would not give her money for food and supplies and would become angry when she asked for funds. This is the reason she borrowed money from loan sharks, not due to a failing business, but because she needed the money to support herself and her children. A friend assisted her to fill out the visa application, and did not read the contents back to her, and this is the reason for the variation in her claims.
She was threatened by loan sharks as she never had money to repay them. Her mother sold some property which paid off some of the debt, but a significant amount remains outstanding. They last sought her at her home in Bali a few years ago.
She never went to the police or to the hospital out of fear from her husband and she treated her injuries herself. She told her mother and sister about the abuse, and while sympathetic, they also advised her to stay with her husband so as not to damage her standing in the community and to maintain her good name. She waited until her children were older, and then took them to her mother’s home and left the country.
Her husband is aware she is in Australia, having been advised as such by her family. He has not tried to contact her. He was not faithful to her, and she believes he is now involved with another woman, but they remain legally married, and she believes he would not let her go. The applicant will need to see him if she seeks a divorce, and in any event, she will need to maintain contact with him due to their children. She fears he will harm her on return and in fact that any mistreatment will be worse because he will punish her for leaving him.
Documentary evidence
The applicant submitted to the Tribunal a photograph of her children, a copy of her marriage certificate and copies of her children’s birth certificates.
Application of s 423A of the Act.
In accordance with s 423A of the Act, if the applicant raises a claim or presents evidence that was not raised before the primary decision was made, and the Tribunal is satisfied that there is not a reasonable explanation for failing to do so, the Tribunal is to draw an unfavourable inference regarding the credibility of that claim or evidence.
The applicant has provided new claims pertaining to family violence to the Tribunal. These claims were not before the primary decision maker. The applicant explained that a friend assisted her to complete the visa application, it was not read back to her, and she was not fully cognisant of the details of that application. I note that the applicant was not interviewed by the delegate and did not have the opportunity to provide oral evidenced regarding the claimed family violence until the Tribunal hearing. I consider there are reasonable explanations for the delay in raising these matters.
I am not satisfied that there are not reasonable explanations for failing to provide any additional claims and evidence prior to the making of the primary decision. Section 423A does not apply.
OVERVIEW OF 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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will be persecuted on return to Indonesia or, if not, whether there is a real risk they will suffer significant harm if removed from Australia to that country.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of reference and s 36(3)
The applicant provided evidence of her Indonesian nationality, including copies of her passport. I find she is an Indonesian national, and that this is her receiving country.
There is nothing in the evidence before me to indicate that the applicant has a right to enter and reside in any country apart from Indonesia and I am not satisfied that she does. I find that s 36(3) does not apply in this case.
Refugee Assessment
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.
Assessment: credibility, marriage, and children
The applicant’s evidence was presented in a manner indicative of genuine lived experience: it was sufficiently detailed and not exaggerated. I find that she is a credible witness.
On the documentary evidence she provided, I accept that she was married in 2007 and that she and her husband, have two sons aged [age] and [age]. I accept on her oral evidence that she and her husband are separated but are not yet legally divorced.
Assessment: claims
The applicant has claimed she is a victim-survivor of family violence perpetrated by her husband and fears he will harm her on return to Indonesia, and that she has outstanding debts to illegal loan sharks.
Relevantly, information states that high rates of gender-based violence are found to occur where women are accorded less value and access to power than men.[1] Societal factors which support an inferior status for women and drive domestic and family violence include rigid stereotypes about the roles of women and men in the family and society, beliefs in dominant forms of masculinity and men’s control of decision-making, limits on women’s independent in public and private life and social attitudes condoning violence against women. [2]
33.     In Indonesia, women are disadvantaged by conservative social, religious, and patriarchal attitudes regarding the place of women in society.[3] Women without husbands have less ‘social access’, which leads to fewer opportunities for social and economic advancement.[4] Circumstances for those with husbands are also difficult. Anti-discrimination laws in employment exist but are not effectively enforced.[5] Between 2006 and 2022 the female labour force participation rate averaged about 50 per cent, and in 2023 it was 53 per cent, compared to 81.5 per cent for men in 2022.[6] Indonesia’s female labour participation rate is lower than other comparable Southeast Asian countries.[7] Women generally earn about 30 percent less than men, and there are laws stating that a women’s work outside the home cannot conflict with their role in improving family welfare and educating the younger generation.[8] These laws also designated the man as the head of the household.[9]
34.     In terms of political participation, the proportion of seats held by women in the national parliament declined to 21.57 percent in 2023.[10] DFAT also advises that women and girls experience discrimination in the application of customary law (adat), which may have the same force of law as statutes and favour existing patriarchal structures embedded in local cultures.[11] For example, inheritance is sometimes denied to women under adat laws. DFAT states that Indonesia does not have no-fault divorce and women might have difficulty proving the grounds for divorce.[12] According to the United Sates Department of State (USDOS), females experience social stigma and bullying related to menstruation, and female students have inadequate access to menstrual education, hygiene products, and hygienic facilities which leads to high rates of absenteeism.[13]
35.      Muslim and non-Muslim women and girls in Indonesia have faced increasing legal and social demands to wear clothing deemed Islamic as part of broader efforts to impose the rules of Sharia, or Islamic law.[14] In some provinces regulations mandate women and girls wear the jilbab or hijab in schools, in the civil service, and at government offices.[15] Even in the absence of such regulations or policies, there is increasing social pressures to conform to these standards of dress.[16] For example, a lecturer at a public university in Jakarta advised that billboards were placed on campus advising all women to wear Islamic attire, in circumstances where the official university policy only required ‘decent clothing’.[17] Mandatory dress codes are viewed as a broader attack on gender equality and the ability of women and girls to exercise their rights to education, livelihood, and social benefits. Human Rights Watch states that the threat of being denied an education or job is an effective means of persuading woman and girls to conform to dress codes and has considerable adverse psychological impacts.[18]
[1] Department of Prime Minister and Cabinet, National Strategy to Achieve Gender Equality Discussion Paper, 2023; Our Watch, ‘The link between gender inequality and violence against women’, ourwatch.org.au, accessed 28 June 2024; see also Australasian Institute of Judicial Administration (AIJA) et al, ‘National Domestic and Family Violence Bench Book’, last updated June 2023 (National Domestic and Family Violence Bench Book).
[2] Department of Prime Minister and Cabinet, National Strategy to Achieve Gender Equality Discussion Paper, 2023; Our Watch, ‘The link between gender inequality and violence against women’, ourwatch.org.au, accessed 28 June 2024; see also Australasian Institute of Judicial Administration (AIJA) et al, ‘National Domestic and Family Violence Bench Book’, last updated June 2023 (National Domestic and Family Violence Bench Book).
[3] Australian Department of Foreign Affairs and Trade (DFAT), ‘Country Information Report Indonesia’, 24 July 2023, DFAT Indonesia Report),at [3.94].
[4] DFAT Indonesia Report at [3.94].
[5] DFAT Indonesia Report at [3.94].
[6] World Bank, ‘Labor force participation rate, female (% of female population ages 15+) (modelled ILO estimate) – Indonesia, worldbank.org, accessed 28 June 2024; World Bank, ‘Labor force participation rate, male (% of male population ages 15+) (national estimate) – Indonesia’, worldbank.org, accessed 28 June 2024; Fayzuah Mukhlisah, ‘Supporting self-employment to solve female labor force participation problem’, The Jakarta Post, 4 March 2024; and Australia Indonesia Partnership for Economic Governance (AIPEG), DFAT and Centre for Development Economics and Sustainability (CDES), ‘Women’s Economic Participation in Indonesia’, Monash University June 2017.
[7] Fayzuah Mukhlisah, ‘Supporting self-employment to solve female labor force participation problem’, The Jakarta Post, 4 March 2024; and Australia Indonesia Partnership for Economic Governance (AIPEG), DFAT and Centre for Development Economics and Sustainability (CDES), ‘Women’s Economic Participation in Indonesia’, Monash University June 2017.
[8] United States Department of State (USDOS), ‘Indonesia Human Rights Report’,22 April 2024 (UDSOS Indonesia Human Rights Report) page 43
[9] USDOS Indonesia Human Rights Report, page 43.
[10] Mona Siahaan, ‘Indonesia: proportion of seats held by women in national parliament 2023’, Statista, June 7 2024, accessed 28 June 2024; Indonesia | House of Representatives | Data on women | IPU Parline: global data on national parliaments, accessed 28 June 2024.
[11] DFAT Indonesia Report at [3.84].
[12] DFAT Indonesia Report at [3.94].
[13] USDOS Indonesia Human Rights Report, page 46.
[14]DFAT Indonesia Report at [ 3.87]; Human Rights Watch, ‘I wanted to Run Away Abusive Dress Codes for Women and Girls in Indonesia’, March 2021, page 1; Human Rights Watch, ‘Updated Submission to the Committee on the Elimination of Discrimination against Women Review of the Combined State Party Report for Indonesia 80th Session - September 2021, page 1.
[15] Human Rights Watch, ‘I wanted to Run Away Abusive Dress Codes for Women and Girls in Indonesia’, March 2021, page 1; and Human Rights Watch, ‘Updated Submission to the Committee on the Elimination of Discrimination against Women Review of the Combined State Party Report for Indonesia 80th Session - September 2021, page 1 and 2.
[16] Human Rights Watch, ‘I wanted to Run Away Abusive Dress Codes for Women and Girls in Indonesia’, March 2021, page 1 – 3.
[17] Human Rights Watch, ‘I wanted to Run Away Abusive Dress Codes for Women and Girls in Indonesia’, March 2021, page 2.
[18] Human Rights Watch, ‘I wanted to Run Away Abusive Dress Codes for Women and Girls in Indonesia’, March 2021, page 2.
According to the most recent DFAT report, violence against women, including rape, is against the law.[19] In April 2022, the government passed ‘Law No. 12 of 2022 on Sexual Violence Crime (Law 12/2022) (the Sexual Violence Law). Among other things, this prohibits certain kinds of harassment and assault and criminalises electronic based sexual violence.[20] The sexual violence law also states that police cannot refuse a report of sexual abuse and are duty-bound to investigate.[21] Relevantly, violent incidents outside the home are not covered by the law.[22] In the first year of operation the sexual violence law was not effectively enforced; sentences were light and convicted rapists received only minimum sentencing.[23] Police operate special crisis rooms or women’s desks across the country where female officers receive reports from female and child victims of sexual assault and trafficking and offer victims temporary shelter.[24] However, as noted in more detail below, women remain reluctant to report gender based violence, and the enforcement of laws is ineffective.
[19] DFAT Indonesia Report at [3.86].
[20] International Commission of Jurists (ICJ), ‘Indonesia: Law No.12 of 2022 on Sexual Violence Crimes and Online Gender-Based Violence Against Women’, Legal Briefing September 2023 (ICJ Report), page 1.
[21] ‘Indonesia finally has a law to protect victims of sexual violence. But the struggle is not over yet’, The University of Melbourne, 20 April 2022; ‘Why is Indonesia’s sexual violence law so important?’, Aljazeera, 14 April 2022.
[22] DFAT Indonesia Report at [3.86].
[23] UDSOS 2023 Human Rights Report, page 29.
[24] USDOS, 'Country Reports on Human Rights Practices for 2022 Indonesia',20 March 2023, section 6, page.30.

Despite positive developments, DFAT reports that violence against women remains a significant problem. Conservative values and strong patriarchal norms are used to justify gender based violence.[25] Information states that these values are strongly ingrained in the social systems, resulting in the reluctance of victim survivors to inform the authorities or their families of the abuse.[26] Victim-blaming ideologies grounded in conservative values are prevalent within state agencies including the police and court officials, and victims who do report their abuse are often dismissed or shamed for seeking help.[27] Similarly, if their assaults, or any police reports for assaults, become known victim survivors are subject to adverse public scrutiny in which they are blamed for the abuse, and may be ostracised at work, by the community and their families.[28] Conservative societal norms allow perpetrators to act with impunity, and even if police are notified perpetrator are unlikely to be held to account for their actions.[29]
[25] Norc and the University of Chicago and the International Center for Research on Women (ICRW), ‘Technology-Facilitated Gender Based Violence in Asia’, 2022, (ICRW 2022 Report), page 13.
[26] ICRW 2022 Report page 3
[27] ICRW 2022 Report, page 3
[28] DFAT Indonesia Report at [3.38] and [3.89]
[29] ICRW 2022 Report, page 3; and DFAT Indonesia Report at [3.89].
The National Commission on Violence against Women reported a significant increase in known cases of all types of violence against women in 2021.[30] West Java recorded the highest rates of violence, though rates were still high in East Java and other areas of Indonesia, and as of 2019, Bali reported 155 cases of violence against women aged from 25 to 59 years old.[31] Instances of technology facilitated gender-based violence, also known as Image, based sexual abuse (IBSA), are prevalent in Indonesia.[32] In 2017, Komnas Perempuan, the Indonesian National Commission on Violence Against Women, identified IBSA as rising trend.[33] There has been a steady increase in the numbers, with dramatic spikes occurring at the start of the COVID-19 pandemic. Komnas Perempuan received 940 reports in 2020, which represented a nearly 400 percent increase from 2019.[34]
[30] Katharina R Lestari, ‘Indonesia records sharp rise in violence against women - UCA News’ 9 March 2022.
[31] Katharina R Lestari, ‘Indonesia records sharp rise in violence against women - UCA News’ 9 March 2022; and ‘Violence Against Women in Bali Decreases, Still An Issue to Tackle’, Indonesia Expat, 9 December 2019.
[32] ICRW 2022 Report, page 3; and ICJ Report page 2.
[33] ICRW 2022 Report page, 2: and ICJ Report page 2.
[34] ICRW 2022 Report page, 2: and ICJ Report page 2.
DFAT states that here are safehouses for victim survivors of family violence, which can provide legal and counselling services, though these are not available in every part of the country and are most likely accessible in urban centres.[35] These services do not have the capacity to help all the women who need them.[36] Moreover, DFAT advises that long delays are common in both criminal and civil cases, and in extreme cases, can take decades or longer to resolve.[37] Access to justice is often not possible for people without means. Legal aid and NGO’s can assist, but their resources are limited and cannot meet the demand.[38] More generally police are limited in their ability to respond quickly and efficiently to reports of crime and other emergencies due to insufficient transportation, inadequate training, and limited investigative ability.[39]
Findings
[35] DFAT Indonesia Report at [3.92].
[36] DFAT Indonesia Report at [3.92].
[37] DFAT Indonesia Report at [5.7].
[38] DFAT Indonesia Report at [5.7].
[39] Overseas Security Advisory Council (OSAC) 'Indonesia Country Security Report', 30 January 2023.
In this case, the applicant provided detailed and specific evidence regarding the family violence she claimed to have experienced from her husband. Her evidence is also consistent with independent information regarding the experience of women in Indonesia discussed above. On the evidence before me, I accept that the applicant is a victim survivor of family violence perpetrated by her husband, throughout their marriage. I accept she has experienced treatment amounting to serious harm, being significant physical harassment and ill-treatment and psychological harm.
The Court has confirmed that ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance, and a person may have a well-founded fear of persecution even though there is only a 10 per cent chance of the persecution occurring.[40] I have considered that the applicant is separated from her husband, she believes he is with someone else, and has not contacted her since her time in Australia. However, I do not consider these matters ameliorate the real chance of any harm to the applicant on return to Indonesia now or in the reasonably foreseeable future.
[40] Chan v MIEA (1989) 169 CLR 379.
I accept that the applicant will return to Bali. Aside from a few months living with a relative in Java, she has only ever lived in Bali and her mother, sister and children are there. Her husband also lives in this area. I accept they remain legally married, and that she will necessarily have contact with him due to their mutual children. I find he will learn of her return to Bali and they will have contact with each other. Research on domestic and family violence states that abusive conduct forms part of a pattern of behaviour that extends beyond the home and beyond the duration of a relationship.[41] Research also indicates that this behaviour can be initiated or exacerbated at times of heightened risk, including attempted or actual separation.[42] Based on this information, and her husband’s past conduct, I accept the applicant’s submissions that her husband will wish to punish her for leaving him and that he will mistreat her including hitting her. I accept that the applicant faces a real chance of serious harm, in the form of significant physical ill-treatment and harassment and significant psychological harm, on return to Bali now or in the reasonably foreseeable future.
[41] Kelly, Liz; Nicola Sharp and Renate Klein Finding the Costs of Freedom How women and children rebuild their lives after domestic violence 2014, Solace Woman’s Aid, as cited in the Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
[42] Bruton, Crystal and Danielle Tyson, ‘Leaving Violent Men: A Study of Women’s Experiences of Separation in Victoria, Australia’ (2017) 51(3) Australian & New Zealand Journal of Criminology 339-354, as cited in the Terminology’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
Given the applicant and her husband remain married and have children together, I accept that there is a real chance within the meaning of that term, that he will seek to find her elsewhere in Indonesia. I find that relocating within Indonesia would not ameliorate the chance of harm to the applicant. I find that the real chance of serious harm arises throughout the country. I also find that the harm involves systematic and discriminatory conduct on the part of her persecutor.
I find that ‘women in Indonesia’ constitutes a particular social group as that term is defined: and find that the shared characteristic is their gender, not a shared fear persecution. On the country information above, I find that the deeply entrenched gender stereotypes and traditional views legitimise violence against women at the societal and state level. I find that violence against women in Indonesia is gender based. In circumstances where violence against women is normalised at the societal level, I find that the essential and significant reason that the applicant faces harm from her husband is because of her gender and her membership of the identified particular social group.
As noted, there is new legislation in place to protect victim survivors of gender-based violence. However, information above indicates these laws have not been effectively enforced and perpetrators are largely unaccountable for their actions. Overall, information above, including from DFAT, is that despite some improvements, a range of factors continue to create difficulties for women subjected to violence to report it, gain adequate state protection, and/or leave harmful settings safely. Having regard the information above I find that effective protection measures are not available for the harm faced by the applicant.
I find that it would not be reasonable for the applicant to modify her behaviour, as to do so requires her to conceal an innate or immutable characteristic, being her gender. This an impermissible modification for s 5J(3)(b). I find s 5J(3) does not apply.
On the totality of the evidence before me, I accept that the applicant has a well -founded fear of persecution.
The applicant has made other credible claims to fear harm in relation to outstanding debts with loan sharks. However, given I have found she satisfies the relevant requirements for the reasons set out above, it is not necessary for me to consider this claim further.
Refugee: conclusion
The applicant meets the requirements of the definition of refugee in s.5H(1).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Victoria Price
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 4159

3 September 2024

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