2111243 (Refugee)

[2024] AATA 3682

2111243 (Refugee) [2024] AATA 3682 (5 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2111243

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Wayne Pennell

DATE:5 August 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 05 August 2024 at 10:29pm

CATCHWORDS

REFUGEE – Protection Visa – Indonesia – actual or imputed political profile – family opposed the government’s policies – family debt – fears harm from money lenders – an unlawful noncitizen – was unlawfully in the country for five years – not satisfied that there is any credibility attached to the applicant’s claim – significant delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 423, 424, 499

Migration Regulations 1994, Schedule 2

CASES

Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

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

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 20 August 2021.

2. The applicant, who is a citizen of Indonesia, applied for a Protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Indonesia, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations.[4]

   [2]The Department of Home Affairs received the applicant’s application on 16 March 2018.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant filed an application (‘review application’) with the Tribunal to review the delegate’s decision.[5] On 10 June 2024, the Tribunal dispatched to the applicant’s email address a letter advising him that the Tribunal had considered all the material before it but was unable to make a favourable decision on that information alone. He was invited to attend a hearing in regard to his review application scheduled for 1 August 2024. Also included with that invitation was a ‘Response to hearing invitation’ template and he was asked to return the completed template to the Tribunal within seven days. He was also asked to provide all documents he intended to rely upon to support his application by 25 July 2024.

   [5]The Tribunal received the applicant’s review application on 26 August 2021.

4. On 30 July 2024, the applicant returned to the Tribunal the completed hearing invitation template, however he did not provide any supporting documents, material or evidence. He asked if he could appear at the hearing by video link, and that request was granted and he appeared at the hearing by that method at the time and date of the scheduled hearing.

5. He was not represented throughout the review process and he was assisted throughout the hearing process by an interpreter in both the Indonesia and English languages.

   CRITERIA FOR A PROTECTION VISA

6. The measures for a Protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.

   [6]Migration Act 1958 (Cth), s 36.

   [7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

7. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]

   [8]Migration Act1958 (Cth), s 36(2)(a).

8. 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.[9] 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.[10]

   [9]Migration Act1958 (Cth), s 5H(1)(a).

   [10]Migration Act1958 (Cth), s 5H(1)(b).

9. The Act also provides that 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.[11] 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 the Act, which are extracted in the attachment to this decision.[12]

   [11]Migration Act 1958 (Cth), s 5J(1).

   [12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

10. If a person is found not to meet the refugee criterion in the Act,[13] that person 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 (‘the complementary protection criterion’).[14] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]

    [13]Migration Act 1958 (Cth), s 36(2)(a).

    [14]Migration Act 1958 (Cth), s 36(2)(aa).

    [15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

11. The Act makes provision for and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]

    [16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

12. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]

    [17]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

13. The applicant claims to be a citizen of Indonesia and provided a copy of his passport to the Department to authenticate this claim. The Tribunal accepts his identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Indonesia is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[18]

    [18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

14. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[19]

    [19]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

15. In accordance with Ministerial Direction No. 84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.

    [20]Migration Act 1958 (Cth), s 499.

    MATTERS LEADING UP TO THE REVIEW HEARING

16. The applicant arrived in Australia on [date] December 2011 subject to the conditions of a Student (subclass 572) visa (‘Student visa’) which ceased on 4 March 2013. He overstayed his visa and did not depart Australia, and remained onshore as an unlawful non-citizen until he was granted a Bridging visa in conjunction with his application for a Protection visa. That application was lodged on 16 March 2018, which was six years and three months after he initially arrived in Australia and five years after his Student visa expired. The issue and the circumstances of the delay are discussed in greater detail later in these Reasons. For completeness, the details of his migration record held by the Department are:

24 November 2011	Granted a Student visa.
[date] December 2011	Arrived in Australia.
4 March 2013	Student visa ceased. He did not depart Australia but remained onshore as an unlawful noncitizen for the next five years.
16 March 2018	Lodged an application for a Protection visa.
3 April 2018	Granted a Bridging (subclass 030) visa C. Valid until 20 June 2018.
20 June 2018	Granted a Bridging (subclass 030) visa C. Remains current.

1. Within his Protection visa application, he claimed that he left Indonesia because he came to Australia to study and for a new life as it was difficult to seek employment in Indonesia. He went on to say that his family opposed the Indonesian government policies causing him to be placed on a watch list. He did not seek help within Indonesia because he has no family financial support, and he went on to claim that he would be treated as a spy who returned to Indonesia and put on a blacklist.

2. Those claims as they are displayed within Part C of his application are (emphasis in bold added):

76

Why did you leave that country/those countries?

·    Study overseas purposes, and looking for new skills/new life.

·    My family opposed with Indonesian government policies. Causing many occasions with Indonesian authorities and h ad been ignored / watch list (including myself), becoming difficult for living / study in mainland country.

77

What do you think will happen to you if you return to that country/those countries?

Will be under watched as whole family opposed to government policies. / follows possibly treatment as spy return to country. will become difficulty to seek employment for livings. I don’t even know I can be arrested or not to return to mainland country.

78

Did you experience harm in that country(s)? [applicant ticked Yes]

As mentioned situations in clause: 76 and 77

79

Did you seek help within the country(s)? [applicant ticked No]

Family financial difficulties.

80

Did you move, or try to move, to another part of that country/those countries? [applicant ticked No]

No financials

81

Do you think you will be harmed or mistreated if you return to that country/those countries? [applicant ticked Yes]

Will be mistreated / ignored of black lists to authorities, even will be as “spy” to return after many years abroad.

82

Do you think the authorities of that country/those countries can and will protect you if you go back? [applicant ticked No]

Current authorities will not protect citizen to return after many years abroad. (as opposes government policies before and now).

83

Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed? [applicant ticked No]

Will not have any chances and no financials to supports. (will be mistreat)

1. On 3 April 2018, the Department wrote to the applicant and acknowledged receiving his application. In that letter, he was reminded that as his application form stipulated, all claims, supporting documentation and evidence should have been provided when he lodged his application. He did not respond to that letter or provide any additional material to the Department.

2. Subsequently, he was invited to attend an appointment with the Department scheduled for 19 June 2018. The purpose of that appointment was so that he could provide his personal identifying particulars. He was also prompted that he could take to that appointment any material or evidence to support his claims. Although he attended the appointment, he did not provide any additional information, evidence or material to the Department.

3. On 13 July 2018, the Department wrote to the applicant and invited him to participate in a telephone interview scheduled on 27 July 2021 to discuss his Protection visa application and his claims. After assessing the applicant’s application, his claims and his responses to the Department during the interview, the delegate made a decision on 20 August 2021 to refuse his application and he was provided with a copy of the delegate’s Decision Record.

4. Subsequent to that, on 26 August 2021 he lodged an application with the Tribunal to review the delegate’s decision, and in doing so, he provided the Tribunal with a copy of the delegate’s Decision Record.

5. In acknowledging the receipt of his review application, the Tribunal wrote to him on 30 August 2021 advising that if he wished to provide any material or written arguments for the Tribunal’s consideration, then he should do so as soon as possible. Specifically, the Tribunal’s letter provided:

   It is important that you:

   ·    tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;

   ·    tell us immediately if your personal circumstances change and this is relevant to the review of the decision;

   ·    use your case number 2111243 when you contact us.

   If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.

6. On 10 June 2024, the Tribunal sent an email to the applicant and enclosed an invitation for him to attend a hearing scheduled for 1 August 2024. He was asked to complete the ‘Response to hearing invitation’ template and return the template to the Tribunal within seven days. He returned the completed template on 30 July 2014 in which he requested that he allowed to attend the hearing via video link.

7. On the morning of the scheduled hearing, the applicant appeared by video link before the Tribunal. Notwithstanding the number of opportunities extended to him by both the Department and the Tribunal to provide evidence, material or information to support his claims for a Protection visa, he never responded to those opportunities. Apart from his oral evidence at the review hearing, he has not provided any evidence or other document or information to support his application.

   REVIEW HEARING

   Applicant’s evidence at the hearing

8. The applicant said that he was from Pontianak in Indonesia. He went on to tell the Tribunal that his father and one of his brothers live in Australia, and his mother lives in Indonesia, as does his older brother and an older sister. He has a younger sister who recently moved to live in [another country].

9. He described that he is married to a [named country] national and they have a young child. He explained that their marriage is not a formal marriage, but rather one which they celebrated with their friends. His wife is on a Bridging visa and she has also applied for a Protection visa. 

10. In regard to his application for a Protection visa, he told the Tribunal that because his English was not very good, he arranged for his friend to help him. He and his friend sat together and they discussed his issues in Indonesia. He told his friend what his experiences were and his friend translated them into English and wrote them into his application. From what he explained to the Tribunal, he instructed his friend to fill out his application, and before it was lodged with the Department, his friend read out to him the details as they are expressed within his application.

11. In regard to him travelling to Australia, he said that he was helped by an agent in Indonesia to apply for a Student visa, and that visa was granted to him sometime towards the end of 2011. The Tribunal noted that his application for a Protection visa describes that he was granted an Indonesian passport on [date] 2011,[21] and he indicated in his application (by ticking the box marked NO) that had not travelled to any other countries other than Australia in the past 30 years.[22] When asked by the Tribunal if he had travelled to any other country between when he was issued his passport to when he arrived in Australia, he told the Tribunal that after being granted the Student visa and before he travelled to Australia, he went to [Country 1] for a medical examination and then returned to Indonesia. That this all took place not very long before he travelled to Australia. The Tribunal is satisfied (and so finds) that this is one of a number of examples in his application which identifies conflicting versions between the information he provided in his application and his evidence at the Tribunal. A further example is when he was asked to explain in his application if he had ever undertaken a health examination for an Australian visa. His response was to indicate in the application that he had undertaken a general health test, but he did not disclose that he undertook that test in [Country 1].[23]

    [21]Applicant’s application, Part C, page 20, question 47.

    [22]Applicant’s application, Part C, page 24, question 67.

    [23]Applicant’s application, Part C, page 22, question 57.

12. In regard to his Student visa, he said that he thought that the visa was valid for two years after his arrival. When he arrived, it was during the end of the year holidays, so he started working with a friend. His friend tricked him and he was not paid for the work he did and this got him in financial difficulty. He went on to explain that he then got a job working on a farm. When asked if he actually studied as his visa provided, he said that he did some [studies] at [a city] but did not complete his course. He then moved to Victoria where he got work on a farm, and he was still in Victoria when his visa expired. He did not depart Australia when his Student visa expired, but instead he overstayed his visa and continued to work in Victoria. When asked why he overstayed his visa, he said that he had problems in Indonesia.

1. In respect to his claims for protection, he confirmed that when he lived in Indonesia, he lived with his parents. His father had [a] shop in Pontianak, and he (the applicant).was aged about [age] and unemployed when he left Indonesia to travel to Australia. When asked about his claims for protection, he said that his father’s business went bankrupt and his father had some debt.

2. He went on to say that his father had borrowed money from a money lender and had to pay high interest. Because his father could not pay the debt and the interest, the lender was looking for “us” and they were “hunted”. When asked who he meant by “us”, he said that he was referring to him, his father, his mother and his brother who was currently in Australia. As it is explained later in these Reasons, although his parents arrived within a few weeks of the applicant, his brother did not leave Indonesia and travel to Australia until after the applicant’s Student visa had expired.

3. He said that his brother was also helped out his father in the  [store] as it was a family business. He explained that his brother and father operated the [shop] and sold [items]. The business only operated from the shop, they did not have a ‘travelling’ business outside the shop.

4. He was asked to explain his claim about his father having a loan and going bankrupt. He said that his father’s business went bankrupt about three months after he and his parents had arrived in Australia. Initially his father was able to pay some of the interest, but could not pay the rest. When asked about where his father got the loan, he said that it was from a private individual who loaned his parents the money.

5. The Tribunal identified to him the comments in the Decision Record which shows that this is a different version to what he had earlier told the Department when he was interviewed on 27 July 2021. On that occasion, he told the Department that the money was loaned by the local government who was set to recover the debt for the unpaid loan. He was asked which of those versions was correct, and he again changed his version of what happened to say that it was a government debt. Having particular regard to his evidence in regard to the purported loan, the Tribunal is satisfied (and so finds) that his evidence was not reliable or credible. 

6. When asked about his father, he said his father arrived in Australia shortly after him. He then told the Tribunal that his father came to Australia by himself, and although he could not remember when his brother arrived, he knew it was some time after the applicant’s arrival.

7. When he gave that evidence about his father’s arrival in Australia, the Tribunal is satisfied (and so finds) that not only was he was very specific that his father arrived on his own, but the Tribunal also finds that this evidence was incorrect. When asked why his father came to Australia, he said that it was to visit the applicant and to have a holiday. By the time his father had arrived (three weeks later), the applicant had relocated from [a city] to Victoria. The applicant did not make any reference in his evidence at that time about his mother arriving in Australia with his father, and when asked if there was any other reason why his father came to Australia, he said that he did not ask him.

8. When the discussion between the applicant and the Tribunal continued on about his father, he later made the comment that “they” did not return to Indonesia when “their’ visa expired. When asked by the Tribunal as to who he was referring to as “they” and “their”, it was only then that he disclosed that he was talking about his parents. When asked to explain what he meant by his parents, he said that his mother and his father. It was only then that he announced that his mother had travelled to Australia with his father.

9. He was asked to explain the change to his evidence because his earlier comment was that his father came to Australia by himself, and now he was saying that his parents came together. He did not explain the discrepancy in his evidence but said that his mother has since returned to Indonesia in either 2014 or 2015.

10. He confirmed that his mother had also overstayed her visa for quite some time, but she has since returned to Indonesia because she needed medical treatment on her leg and it was too expensive in Australia for the treatment.  

11. The Tribunal is satisfied that in regard to the evidence about his mother, the applicant was not a reliable witness and nor was his evidence credible. He told the Tribunal that because of the issues relating to the family debt in Indonesia, when his mother returned to Indonesia she did not return to their home in Pontianak, but instead went to Sambas where she stayed with her family, and that is where she still lives.

12. This evidence is contrary to what he told the Department during his interview on 27 July 2021 when he confirmed with the delegate that his mother had returned to Indonesia and she was living in Pontianak. This is a further example of his inconsistent evidence.

13. Another example of the inconsistency and contradiction between his evidence about her living in Sambas is contained within his application where he described where his mother was living. His evidence to the Tribunal was that when she returned to Indonesia, she lived with her family at Sambas. However, within his application he identified that his mother was living at the same address where he nominated that he lived from 1992 up until the time he left Indonesia and travelled to Australia, and this is the same address he identified where his father was living.[24]

    [24]Applicant’s application, Part B, pages 7 and 8, question 4 and Part C, page 24, question 68.

14. In assessing that evidence, the Tribunal does not accept that the applicant’s father arrived in Australia alone, and is satisfied (and so finds) that the applicant’s parents arrived together. The Tribunal is also satisfied that like the applicant, both of his parents overstayed their visas, with the applicant’s mother returning to Indonesia in 2015. The Tribunal rejects the applicant’s evidence that upon his mother’s return to Indonesia, she continued to live in Sambas, and is satisfied (and so finds) that she is residing in Pontianak as he told the Department during their interview, and as he has stipulated in his application.

15. In regard to his father, he described in his application that he (his father) was living in Pontianak in Indonesia. He nominated his father’s address as the same address he had nominated in his application for where his mother was living. That address is also the same address the applicant nominated in his application as where he had lived in Indonesia from when he was born [until] he left for Australia in 2011.[25]

    [25]Applicant’s application, Part C, page 24, question 67.

16. Noticeably, although the applicant’s evidence was that he knew that his father was in Australia, when he answered the question in his application about other members of his family who were not included in his application, he ticked the box marked NO. Therefore, he gave a response in that application that his father was not in Australia, and was in fact living in Indonesia. When asked why his evidence about his father being in Australia at the time of his application differed to what he said in his application, the applicant blamed his friend for making a mistake because his friend did not know that his father was still in Australia. Given the number of other misleading entries in his application which he refers to as ‘mistakes’, the Tribunal does not accept that it was a mistake and is satisfied that his response within his application was not correct and it goes directly towards the veracity of the information the applicant provided in his application.

17. The Tribunal was aware that the applicant’s brother had arrived in Australia on a Tourist visa in 2013, and overstayed his visa and was an unlawful noncitizen for almost five years until he made an application for a Protection visa around the same time the applicant did. In lodging that application, the applicant’s brother claims for protection were similar to the applicant’s, although he claimed to have operated his own business and came to Australia because he owned money to a private money lender in Indonesia. The Department refused his application, and he applied to the Tribunal to review that decision. When that application went before the Tribunal, (same constituted member as this matter), the Department’s decision to refuse his application was affirmed.[26]

    [26]Tribunal’s Case No. 1902677.

18. The Tribunal was also aware that after the applicant’s father arrived in Australia in December 2011 on a Tourist visa, he overstayed that visa and was an unlawful noncitizen for approximately six years and three months until he applied for a Protection visa about three months after the applicant lodged his application. The Department refused that application and the applicant’s father lodged an application with the Tribunal to review that decision. The Tribunal (same constituted member as this matter) affirmed the Department’s decision.

19. The claims for protection made by the applicant’s father in his application did not relate to him owning a business or any type of [store], or even having a debt with anyone in Indonesia, or him having any political opinion which opposed the policies of the Indonesian government. The reasons given by the applicant’s father for him coming to Australia and making his application were because he had an illicit affair with a wife of a rich Indonesian businessman. When her husband found out about their secret relationship, the businessman hired someone to kill the applicant’s father. The wife heard about the plan to kill him and she warned the applicant’s father to go overseas.[27]

    [27]Tribunal’s Case No. 1827552.

20. The Tribunal considered that the information about the claims expressed in the Protection visa applications made by the applicant’s brother and his father would be the reason or part of the reason for affirming the decision under review in regard to the applicant in this matter. Therefore, subject to the provisions of section 424AA of the Act, the Tribunal gave him clear particulars of that information, and in doing so, the Tribunal made sure that the applicant understood the relevance of the information to the review, and the consequences of the Tribunal relying on the information in affirming the delegate’s decision.

21. After being advised of the information, the applicant was invited to comment on or respond to that information; and he was also advised that he may seek additional time to comment on or respond. The applicant did not seek time to respond or comment, instead he chose to tell the Tribunal that in regard to his brother’s claims, his (the applicant’s) claims were similar to his brother’s claims because when they lived in Indonesia they worked together in their father’s shop. However, the Tribunal particularly notes that notwithstanding the applicant’s claims why he had to leave Indonesia, for the period of three years following his departure his brother remained in Indonesia and the applicant provided no evidence that his brother experienced any harm does not accept that his brother’s claims could relate to what the applicant claims. It was identified to the applicant that his brother claimed that he had his own business, and had fallen into debt in the time leading up to when he came to Australia. The applicant agreed that his brother did have a business of his own, but claimed that it was actually his wife’s business from her family. Although the applicant agreed that his brother operated a business other than a  [store] owned by their father, the Tribunal finds that this evidence is inconsistent with his earlier evidence that his brother worked for their father. 

22. When asked about his father, the applicant said his father arrived in Australia on a Tourist visa soon after the applicant had arrived. He then said that ‘we’ were unlawful, meaning his parents and the applicant himself. He also said that they were unlawful because they were unaware that they could apply for a Protection visa. He confirmed that at the time that he made his own application in 2018, his mother had already returned to Indonesia but his father remained in Australia.

23. The applicant said that he was aware that his father was an unlawful noncitizen at that time he (the applicant) lodged his own application. When asked by the Tribunal that if he knew at the time he made his application that his father was still in Australia, then why did he say in his application that his father was living in Indonesia. His response was to apportion blame onto his ‘friend’ who he said had filled out his application for him, and he also said that his friend made a mistake when filling out the application and did not know that his father was still in Australia.

24. When it was outlined to the applicant what his father’s claims for protection were, he told the Tribunal that he had heard the story from his father about the affair with the businessman’s wife, but was not aware that it was the reasons for his father’s application for a Protection visa.

25. When asked about his own claims relating to him being on a blacklist in Indonesia, he said that he and his family cannot return to Indonesia. It was not safe because the money lenders said that they if they did not pay they would prosecute him and his family or “kill us”. He went on to say that when his mother went back to Indonesia, she had to go and live elsewhere with her family in Sambas. As it has already been identified in these Reasons, the Tribunal does not accept that she lived in Sambas, but instead lived in Pontianak. His response was to say that “maybe I’ve made a mistake, my friend copied their old address in Indonesia”. It is also evident to the Tribunal that the address nominated as where his mother was living was the same address nominated for where his father was living, and the Tribunal does not accept that it was a mistake as he claimed. Since his mother returned to Indonesia for medical treatment, there has never been any evidence given by the applicant that she experienced any harm, and nor does the Tribunal accept that there would be any risk exists which is associated with the applicant returning to Indonesia.

26. The applicant then went on to say that “they” borrowed money from the government, and “these people” were looking for him, his mother and his father. He claimed that he was just as much involved in the whole thing as his parents. When asked who “these people” were that were looking for them, he said they were from the government and they had “subordinates” looking for him and his parents. It was then identified to him that although he said that “they” were looking for him, it took him three weeks to leave Indonesia after being threatened. To explain that three week period, he said that his parents were still able to pay the debt instalments at that time. The Tribunal found that his evidence frequently changed to cater for a response to the Tribunal’s questions.

27. Returning to the applicant’s claim that he would be killed by the money lenders if he returned, this was the very first time that he had disclosed that he had a well-founded fear of such a severe form of punishment. He did not disclose this in his Protection visa application, and despite a number of opportunities provided to him by the Department and the Tribunal to provide evidence to support his claims, he had never previously disclosed that his life was at risk. Nor did he make any mention of this to the Department during their interview with him on 27 July 2021.

28. Because this was a claim which had never been raised before the Department made the primary decision about his application, section 423A of the Act provides that the Tribunal is to draw an inference unfavourable to the credibility of the claim if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised before the primary decision was made. The applicant claimed that when he and his friend were filling out the application, he explained to his friend his experiences in Indonesia, particularly that he would be killed. He said he could not understand why it was not included in his application, and nor could he explain why he never mentioned to the delegate during their interview on 27 July 2021. His only response was to say, “I don’t remember”. The Tribunal does not accept that this was a reasonable explanation why the claim was never previously raised, and the Tribunal is satisfied (and so finds) that an unfavourable inference should be drawn as to the credibility of that claim and it is rejected by the Tribunal.

    DELAY IN LODGING APPLICATION

29. When considering the applicant’s delay in lodging his application, the Tribunal is aware that a delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible, and the significance of any delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.[28]

    [28]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346: Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998.

30. The Tribunal was aware of certain information relating to the applicant’s migration history within the Department’s file, and because he was appearing before the Tribunal by way of an invitation,[29] his migration history was particularised to him subject to the provisions of section 424AA of the Act.

    [29]Migration Act 1958 (Cth), s 425.

31. That migration history showed that he arrived in Australia on [date] December 2011 subject to the provisions of a Student visa. That visa was valid until 4 March 2013. When his Student visa expired, he did not depart Australia but instead remained onshore as an unlawful noncitizen until he lodged his application for a Protection visa in March 2018. Effectively, his application was lodged six years and three months after he arrived in Australia, and during that time, he was unlawfully in the country for five years.

32. When carefully assessing the available material before the Tribunal, the applicant has never taken the opportunity to explain in his Protection visa application, or in any material provided to the Tribunal why there was such a delay between his arrival in Australia and the making of his application. When offered the opportunity by the Tribunal to discuss that delay at the review hearing, he said the significant delay between his arrival in Australia to when he lodged his application was because he did not know about a Protection visa until much later until being told by a work colleague about such a visa.

33. He confirmed that in regard to making an application for a Student visa when he was in Indonesia, he used an agent who takes care of Student visas. When asked why he did not consult with an agent in Australia when he knew that his Student was expiring, he said that he had trouble with his finances and could not afford it.

34. When carefully considering his evidence that all of his family members who were in Australia at that same time were all unlawful non-citizens, and two of those family members have made their own applications for Protection visas, the Tribunal does not accept that it was a plausible explanation that he would have been unaware that he could apply for a Protection visa. The Tribunal is therefore satisfied that his evidence in that regard was unreliable and without any credibility.

35. In respect to any consideration given by the Tribunal about that delay, guidance is found by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution. Therefore, when careful consideration is given to the delay of five years between the applicant’s arrival in Australia to when he made his application for a Protection visa, the Tribunal is satisfied (and so finds) that under the circumstances relating to the features of this case, that delay is a significant delay.

1. When careful examination is undertaken of the applicant’s claims for protection, and consideration is given to assessing the genuineness or depth of his fear of persecution should he return to Indonesia against all the known facts of this matter, including the significant delay, the Tribunal is satisfied (and so finds) that the significant delay can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm because a significant delay is not behaviour indicative of someone who fears for their physical safety.[30]

   [30] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

   CONCLUSION AND REFUGEE FINDINGS

2. The very nature of a review hearing is that the hearing is conducted from the beginning (anew) and the Tribunal is to review the material, information and evidence made available to it, and to give a fresh consideration to all of that material, information and evidence and to make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. The Act provides that when the Tribunal is considering this matter, although it is not bound by technicalities, legal forms or rules of evidence; it must act according to substantial justice and the merits of the applicant’s case.[31]

   [31]Migration Act 1958 (Cth), s 420.

3. By its own character, a review hearing is also inquisitorial in nature, and although the Tribunal can seek out evidence it considers is required in order to reach a determination in this matter, the Tribunal is under no obligation to seek out evidence to support the applicant’s claims, even though it is entitled to do so.[32]

   [32]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].

4. There is no requirement placed upon the Tribunal to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. There is no obligation or responsibility on the Tribunal’s part to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims,[33] nor is it required to accept uncritically any of the allegations he makes.[34]

   [33]Migration Act 1958 (Cth), s 5AAA.

   [34]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

5. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because he claims that he will 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 the statutory elements are made out.

6. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons

7. The issue in this matter is whether there are substantial grounds for believing that, as a foreseeable consequence of the applicant being removed to Indonesia, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm on the grounds of him being threatened by debt collectors because he owed money to creditors, and that he would be considered a spy and a failed asylum seeker.

8. The applicant has been given opportunities by both the Department and the Tribunal to provide all of the details of his protection claims, and the initial Protection visa application form that he completed informed him that he should provide all of his claims for protection and all documentation or other evidence to support his claims. On 3 April 2018, the Department sent a letter to the applicant and acknowledged receiving his valid application. At that point he was told that he could provide additional information relating his claims, and he was advised how he go about providing that to the Department. The Tribunal is satisfied (and so finds) that there is nothing within the material before the Tribunal that shows that he ever provided any material, information or evidence to the Department to support or validate his claims.

9. The applicant took part in interview with the Department on 27 July 2021, and on that occasion he discussed with the delegate particulars relating to his protection claims. The Tribunal is satisfied (and so finds) that during the Tribunal hearing, his evidence differed to the information which he provided to the Department during that interview. That inconsistencies between his interview and the Tribunal hearing has already been explored in these Reasons.

10. When he filed his review application with the Tribunal, the Tribunal wrote to him on 30 August 2021 and he was told that if he wished to provide material or written arguments for the Tribunal to consider, then he should do so as soon as possible. Likewise to the above finding, there is nothing within the material before the Tribunal that shows that he ever provided any material, information or evidence to the Tribunal to support or validate his claims.

11. The claims he relies upon specifically relate to the applicant and his whole family opposed Indonesian government policies and he and his family had confronted Indonesian authorities on many occasions. Their pleas were ignored and they were included on a watch list. In that regard, the Tribunal notes that his brother remained in Indonesia and did not depart for a further two years. There is no information or evidence to say that his departure from Indonesia was anything other than a lawful departure and nor is there any evidence of the applicant’s brother being subjected to any harm in Indonesia during that two year time, or indeed being prevented from departing Indonesia.       

12. He went on to say that it was difficult for him and his family to live and/or study in Indonesia and he and his whole family will be under watch and mistreated by Indonesian authorities if he returned. He also claimed he feared he will be treated as a spy if returning to Indonesia, and will be arrested and/or imprisoned. He also said that he could not relocate to another area in Indonesia because the Indonesian authorities will not protect him and, in addition, he will mistreated and will have no financial means to support himself.

13. At the time of his interview with the Department and at the review hearing, those claims shifted to his father owning a [shop] and going into debt, although the applicant’s evidence was somewhat confusing as at one point he said that the government loaned his father money, whereas at another time he said it was a private money lender who loaned money to his father.

14. He also claimed that because of the debt his father was made bankrupt, and that he (the applicant) will be killed if he returns to Indonesia because he was just as involved in the debt as was his father, which is a claim that he never previously raised and which the Tribunal is satisfied (and so finds) is devoid of any credibility.

15. The applicant’s father and brother have also made separate applications for a Protection visas. Both of those applications have already been decided by the Tribunal (constituted by the same member as this matter). Although the applicant’s initial claims for protection were similar to those relied upon by his brother (as it has already been discussed), those claims morphed into his father owning a [store] and going into debt and being bankrupted. None of the claims the applicant relies upon were in any way similar in character to those which his father relied upon.

16. He claims that he fears being harmed by what he referred to as debt collectors, or someone who his parents owed money to, and he would be treated as a spy because he had spent a considerable amount of time out of Indonesia and was a failed asylum seeker, those claims do not fall within the ambit of the ‘persecution’ as defined in section 5J(1)(a) of the Act in that he has a well-founded fear of being persecuted because of his race, religion, nationality, or membership of a particular social group.

17. In regard to his claim that he has an actual or imputed political profile in Indonesia because he and his family opposed the government’s policies and were persecuted, he said that he feared returning to Indonesia for those reasons relating to his political opinion. During the Tribunal hearing the applicant was not able to articulate what specific policies that he and his family were opposed to except to say the policies related to the policies affecting the family business because it had been bankrupted. He has also claimed to the Department during their interview that the business owned by his parents was collapsing and the local government were looking to recover the debt his parents owed. This information is contrary to his evidence at the Tribunal hearing where he claimed that the debt was owned to a private money lender.

18. When that evidence is balanced against the evidence that his mother has returned to Indonesia, and according to the applicant’s application she returned to live in Pontianak, the Tribunal is not satisfied that applicant has a well-founded fear of persecution in Indonesia because of any actual or imputed political opinion.

19. Therefore, after careful consideration of all the material available, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as he does not fear that if he returns to Indonesia he will be persecuted for reasons prescribed in section 5J(1)(a) of the Act. The Tribunal is not satisfied that he is a refugee as defined in section 5H(1) of the Act and accordingly, the Tribunal finds that he is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.

    COMPLEMENTARY PROTECTION CONSIDERATIONS

20. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[35] the Tribunal has given careful consideration to the alternative criterion.[36] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Indonesia, there is a real risk that he will suffer significant harm as it is defined in the Act.[37]

    [35]Migration Act 1958 (Cth), s 36(2)(a).

    [36]Migration Act 1958 (Cth), s 36(2)(aa).

    [37]Migration Act 1958 (Cth), s 36(2A).

21. Significant harm is defined within section 36(2A) of the Act as the person will be arbitrarily deprived of his or her life; the death penalty will be carried out on the person; the person will be subjected to torture; the person will be subjected to cruel or inhuman treatment or punishment; or the person will be subjected to degrading treatment or punishment.

22. The Tribunal’s observations of the applicant’s claims are that the real risk he claims is the likelihood of him being harmed by a debt collector, or more so, someone who his parents owed money to, and that he will be harmed because of his political opinion in opposing government policies, and he would be treated as a ‘spy’ because he had spent a considerable amount of time out of Indonesia and was a failed asylum seeker.

23. Section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that he will suffer significant harm if returned to Indonesia. The Courts have adopted the principle that the test for ‘real risk’ imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[38]

    [38]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

24. Real chance was also discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[39] The question of ‘real chance’ is the test to be applied on an application for a Protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[40] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[41]

    [39]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.

    [40]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.

    [41]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

25. When carefully assessing the claims made by the applicant, the Tribunal is not satisfied the harm the applicant fears could constitute either of the forms of significant harm as defined in section 36(2A) of the Act. The applicant has not claimed that the death penalty will be carried out on him or that he will be subjected to torture. However, at the Tribunal hearing he made the late claim that the people who his parents owed money to threatened to kill him. Earlier in these Reasons the Tribunal has found that an unfavourable inference should be drawn as to the credibility surrounding that claim and it was rejected. Therefore, the Tribunal is not satisfied that the applicant would suffer any of these forms of ‘significant harm’ in section 36(2A)(a)-(c) of the Act if he returned to Indonesia.

26. Within his Protection visa application, the applicant claimed that due to his whole family opposing the Indonesian government, he has a well-founded fear of returning to Indonesia because he will be under watch by government authorities, be treated as a spy and risks being arrested. He also claims that he will be mistreated, blacklisted, and it will be difficult to obtain employment and finances for relocation to another area in Indonesia.

27. When he was interviewed by the Department on 27 July 2021, he claimed the reason he would be under watch and blacklisted by government authorities is because of the debt his parents incurred through their business, and the family business going bankrupt. When careful consideration is given to those claims and the applicant’s own evidence at the hearing, he claims that was an unemployed [age] year old high school student at the time of the debt being incurred and he was not running the business and the Tribunal is satisfied that at best he did some work for his father. In contrast to that was the claims expressed by his father in his application for a Protection visa which are quite contrary to the applicant’s claims.

28. The Tribunal is therefore satisfied that it is unlikely that he would have been placed on a watch list or blacklisted by the Indonesian government. If he was indeed placed on a backlist, then it can be reasonably assumed that the rest of his family, including his mother would have also been included in that blacklist. With the successful and safe return of his mother to Pontianak, Indonesia in 2015, this satisfies the Tribunal that her return is an indication that it is not likely the applicant would be arrested, or placed on a watch list, or blacklisted.

29. The Tribunal has already indicated that does not accept that the applicant is a reliable or credible witness in regard to the information he provided about his mother living at Sambas because when he was interviewed by the Department on 27 July 2021, he said at that time that his mother was currently residing in Pontianak and has not experienced harm of any kind. In regard to any assessment of how safe it would be for the applicant to return to his home area, the Tribunal is satisfied that when significant consideration is given to that evidence, his mother was the partner of the person (his father) running the family business and she would have been at more significant risk than the applicant himself from being watched and blacklisted by any government authorities. Yet, she has not experienced any harm upon her return to Indonesia.

30. In relation to the applicant’s claim that he has a well-founded fear of being treated as a spy and possibly being arrested if he returned to Indonesia because he had lived in Australia for many years, the Tribunal is satisfied that given the lack of veracity in much of the applicant’s claims and the evidence he has presented to the Tribunal and the Department, the Tribunal is not satisfied that any credibility is attached to that claim and it is rejected. Further to this, just discussed above was his mother’s return to Indonesia after spending more than three years in Australia, and the Tribunal is satisfied (and so finds) that there is no evidence that she has experienced and treatment as a spy by the Indonesian authorities.

31. The Tribunal has also carefully considered whether the harm he claimed he feared could constitutes either of the other forms of significant harm in section 36(2A)(d)-(e) of the Act, which is ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. Both of these forms of significant harm are defined in section 5(1) of the Act and require the act or omission of the perpetrator to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment) and be intentional.

32. The ordinary meaning of intention implies a plan or aim and the High Court found that intention requires a perpetrator to have an ‘actual, subjective, state of mind’.[42] When carefully considering the inconsistencies between the applicant’s oral evidence and his application, along with the vagueness of his claims and the lack of any tangible or probative evidence about his father’s purported  [store] and the loan he obtained, the Tribunal is not satisfied that there is any actual perpetrator that would have an actual, subjective, state of mind.

    [42]SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34, [27].

33. A further concern for the Tribunal is that extreme variance between the claims made by the applicant as to why he left Indonesia and why his father claimed in his application why he had to leave. Where the applicant said it was because of those reasons just discussed, his father made no reference to owning a [store] or having a debt, but instead claimed that he left Indonesia and had a well-founded fear of returning because he had an affair with a married woman and her husband hired someone to harm him.

34. Therefore, the Tribunal finds that his claims about his father’s business are not credible or reliable and the Tribunal is also satisfied (and so finds) that there were significant inconsistencies between his initial Protection visa application, the evidence he gave about this matter, and his father’s claims. When careful consideration is given to those claims and weighed against those of the applicant, the Tribunal is satisfied (and so finds) that there is no credibility to be attached to the applicant’s claims, his evidence is unreliable and his claims are rejected in their entirety.     

100.   The Tribunal is satisfied (and so finds) that when careful consideration is given to the information he gave in his application about never travelling to any other country, his mother’s location in Indonesia, and his claim within his application that his father was living in Indonesia  are all identifiable inconsistencies to his oral evidence, and which were purposely engineered or designed to achieve a specific outcome in regard to his refugee status.

101.   Therefore, after having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to Indonesia now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, or he will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will he be subjected to degrading treatment or punishment.

CONCLUSION: REFUGEE CRITERION

102. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group in Indonesia. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.

CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

103.   Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Indonesia, he will be exposed to a real risk of suffering significant harm.

OVERALL CONCLUSION

104. 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 section 36(2)(a) of the Act.

105. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion and the Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

106. There is no suggestion that the applicant satisfies section 36(2) of the Act based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.

DECISION

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

Wayne Pennell
Senior Member
-  Extract from Migration Act 1958

ATTACHMENT 

5 (1) Interpretation

…

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

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

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

(a)     that is not inconsistent with Article 7 of the Covenant; or

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

…

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

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

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

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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