2206340 (Refugee)
[2025] ARTA 2199
•2 October 2025
2206340 (Refugee) [2025] ARTA 2199 (2 October 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2206340
Tribunal:General Member T. Griffiths
Date:2 October 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 02 October 2025 at 3:22pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – fears becoming infected with COVID-19 – returned to home country – claims no longer valid – requested decision on the papers – severe traumatic brain injury – no current health management plan – new claim – political opinion – anti-government – no genuine fear in returning to home country – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 55, 106
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 357A, 359A, 367A, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Bushell v Repatriation Commissioner (1992) 175 CLR 408
EIZ20 v Child Support Registrar (2023) FedCFamC2G 637
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 April 2022 to refuse to grant the four applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant a citizen of Indonesia, applied for the visa on 19 April 2021. The second named applicant is the husband of the first named applicant. The third named applicant is the daughter of the first and second named applicant. The fourth named applicant is the son of the first and second named applicant. References herein to the applicant are references to the first named applicant.
In the protection visa application the second, third and fourth named applicants do not make claims in their own right. The second, third and fourth named applicants claim on the basis of being members of the same family unit, as defined in s5(1) of the Act.
The delegate refused to grant the visas on the basis the applicants are not persons in respect of whom Australia has protection obligations.
BACKGROUND
The first named applicant was born in Banyuwangi, East Java Province, Indonesia on [date]. The second named applicant was born in Banyuwangi, East Java Province, Indonesia on [date]. They were married in Banyuwangi, [in] September 2013. The third named applicant was born in Banyuwangi, Indonesia on [date]. The fourth named applicant was born in Banyuwangi, Indonesia on [date].
The first named applicant arrived in Australia from Indonesia with the other applicants [in] January 2014. The first and second applicants speak Indonesian and some English. As at the date of the application the form states the children speak Indonesian only.
Evidence before the Department
The applicant’s claims for protection as contained in the protection visa application lodged 19 April 2021 were summarised by the Delegate as follows:
a.The applicant does not want to return to Indonesia with her family as there is a high risk that they all may become infected with COVID-19.
b.The applicant claims the COVID-19 situation in Java has become serious, with East Java, being the applicant’s hometown, having the highest number of COVID deaths in Indonesia.
c.The applicant states she has two young children and does not want to risk her families’ health or any of their lives, returning to Indonesia.
d.The applicant does not think the Indonesian government or local authorities in East Java will protect her or her family against the pandemic.
e.The applicant cannot move to another part of Indonesia as both the applicant and her partners parents live near them in East Java.
The applicant provided documents in support of the claims:
f.Online information outlining COVID-19 developments in Indonesia dated 12/04/2021
g.Online article from garda.com – extending public activity and restrictions in parts of the country
h.Wikipedia statistics on active cases by provinces in Indonesia 12/04/2021
Worldometer statistics – 14/04/2021
j.Certificate of Unfitness of the applicant dated [January] 2022
The protection visa application form stated:
Applicants must answer all the following questions in their own words. Applicants must provide all the details about why they are seeking protection and, wherever possible, must provide documentation to support protection claims. A decision may be made on the information provided in this application and applicants may not be given another opportunity to present these claims. Therefore, it is important that applicants include all details relevant to their case and attach any supporting documentation to this application before it is submitted.
On 20 April 2021, the applicant was sent an acknowledgement of valid application letter which advised that they could provide additional information relating to their claims and how they could do this. The letter also informed the applicant that the decision on their application could be made without another opportunity for them to present any further information.
Delegate’s Decision
The Delegate for the Minister for Home Affairs issued a decision on 22 April 2022. The Delegate found there was no information that the applicant would be targeted for reasons within s5 (1)(a) of the Act and further no evidence to suggest the applicant would personally suffer a greater risk of harm from the covid pandemic than the population generally. The Delegate refused the application.
Evidence before the Tribunal
On 5 March 2022 the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal, and which application is now before the Administrative Review Tribunal, (the Tribunal).
On 23 July 2025 the Tribunal sent to the applicant an email with a link to a Pre- Hearing Invitation Form which the applicant was requested to complete and return and which asked as follows:
1 What were the protection claims you made to the Department of Home Affairs (Department)? Please provide details in the space below (if there is not enough space, please attach a written statement).
2 Do you still have the same protection claims? ☐ Yes. Go to Part B ☐ Yes and I have additional claims now. Continue to next question ☐ No, I have different claims now. Continue to next question.
3 Please provide details of the additional or different protection claims to be considered by the Tribunal in the space below (if there is not enough space, please attach a written statement).
4 Why did you not advise the Department of the additional or different protection claims?
Request for Protection Visa Information form 3 PART B – New evidence or information 5 Do you have new evidence or information to support your protection claims? ☐ Yes. Continue to the next question ☐ No. Go to Part C. 6 Please provide all new supporting evidence and information to the Tribunal. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
On 28 July 2025 the Tribunal sent a letter of that date with a Notice of Hearing scheduled for 26 August 2025. The letter requested provision of written submissions and signed declarations from the applicants and any witness statements.
On 12 August 2025 the applicant completed and returned the Response to Hearing form and which stated she would not participate in the hearing and requested a decision on the papers without holding a hearing. Curiously the completed form indicated the second applicant would participate in the hearing. The form further indicated there were no documents to be relied on and no witnesses.
On 19 August 2025 the Tribunal sent a letter addressed to the first, third and fourth applicants by their representative. The letter was an invitation to comment on information in Movement Records from the Department which showed those parties had departed Australia for Indonesia in April 2024 and had not returned. The letter advised that a criteria for the grant of a protection visa is that the applicant is in Australia.
Also on 19 August 2025 the Tribunal sent a letter addressed to the second applicant by the same representative. The letter was an invitation to comment on the same information in the Movement Records. The letter added “Further, the fact that your family members have returned is evidence that claims based on fear of infection from covid may no longer be sustainable”.
The Tribunal did not receive any written response by way of comment on the information in the 19 August letters.
The hearing on 26 August 2025 was cancelled at the request of the applicant. However, the second applicant in fact attended the Tribunal on that date. By email of 26 August 2025 the representative for the applicants advised the Tribunal that the second applicant wished to attend a hearing.
On 29 August 2025 the Tribunal wrote to the second applicant by his agent and advised that the Protection Visa application dated 19 April 2021 stated that [the second applicant] is not making his own claims for protection. The letter requested:
Would you please advise in writing within 7 business days:
1. Please specify the claims for protection relied on by [the second applicant]
2. Please specify the evidence relied on by [the second applicant] and in particular if any witness statements or documents are to be provided
3. Please advise the nature of the head injury suffered by [the second applicant] and whether it impacts his fitness to attend and give evidence
4. Please confirm that the applicants other than [the second applicant] maintain the position of requesting a decision on the papers.
On 16 September 2025 the agent for the applicants sent the Tribunal a Brain Injury Rehabilitation Services Medical Discharge report for the second applicant dated [April] 2022. The report gave a diagnosis of a severe traumatic brain injury sustained [in] January 2022.
Also on 16 September 2025 the agent for the applicants sent the Tribunal an email stating “Pls be advised that [the second applicant] informs ART that due to his brain injury he is unable to maintain concentration for over 1 hour time, which affects his ability to attend hearing which usually lasts over 1 hour. Also he will provide his own claim for protection by Wed this week, ie tomorrow”
On 17 September 2025 the agent for the applicants sent the Tribunal an email stating “[the second applicant] informs me that he claims protection because he supports the current anti-government protest in Indonesia. His original message to me is: "I can't go back to Indonesia for a while because I'm against my country's government. And there have been a lot of protests and some looting at officials' houses lately. Pls update his review file. Thanks”.
A new hearing date was appointed for 1 October 2025. On about 28 September 2025 the second applicant completed and returned a Response to Hearing Notice which informed the Tribunal he would attend and there were no documents or witnesses to be relied on.
Oral evidence at hearing on 1 October 2025
The second applicant gave evidence with the assistance of an interpreter. There was no indication the second applicant was hampered by any medical condition during the hearing.
The second applicant was asked about his social media use. He does not have a working laptop and relies on his phone. He said he is not very active on social media. He said he sometimes posted comments on [Social media 1] on political matters and that the last occasion was a few days ago. The Tribunal requested these comments be shown. The second applicant indicated there was a misunderstanding and there were no recent posts by him. He said he had been active posting on [Social media 1] on political matters before covid. He said that after covid he had posted some comments but stopped a year ago at the time of the election of President Prabowo Subianto.
The second applicant confirmed his wife and children had returned to Indonesia. He confirmed his wife is not interested in politics and not worried about the risk of political violence adding “maybe she just feeling alert”. He confirmed she is not worried about covid.
The second applicant said he actually was staying in Australia temporarily, that he wanted to make sure he was fully recovered in terms of his health. He continues to work as [an Occupation 1]. It is one or two years since he had seen his brain injury specialist whom he thought was Dr [A]. He is not currently undertaking medical treatment nor is he under medical supervision. He has been advised to maintain exercise.
The second applicant was asked if he thought he would be persecuted when he returned to Indonesia. He replied to the effect, “actually I want to return, I can’t wait to go back there, I hope this year will be the last year I am here. I hope to be back by early next year”. The applicant added “actually I do have a fear (of persecution) but I already plan not to stay too long in Australia.”:
The second applicant has no record for criminal activity or civil disobedience. He has never been a member of a political party. He has in the past supported political parties on social media. He once joined a demonstration when he was still at school.
The second applicant was aware that the original 2021 visa application relied on covid as the basis for a fear of returning. When asked why the application did not mention political concerns he said, that’s correct, because the instability and unrest in Indonesia only occurred in the last few months.
The second applicant was asked about the Indonesian police and judiciary. The applicant mentioned some recent demonstrations in Indonesia and added “I want to make sure about the political situation (in Indonesia) while I am here, and also my health. He elaborated , “I am worried about possibility of infection , I want to make sure that nothing wrong with lungs and internal organs, I have difficulty if do heavy lifting, if go back now, won’t be able to get medical treatment like what I have in Australia.”
The second applicant concluded his evidence saying “I hope to stay to end of this year and return in January. I have already booked a ticket.” He mentioned he has a relative travelling to Indonesia next year and he plans to travel back with them.
The Law
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.
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).
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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B).
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.
Country Information
The Tribunal referred the applicant to remarks in the DFAT Country Information report on Indonesia and in particular at para 5.2 as to the effectiveness of Indonesian police and para 5.5 as to the improved independence of the judiciary post-Suharto. The second applicant commented the situation in Indonesia is actually worse than portrayed in the media.
REASONS AND FINDINGS
Request by first, third and fourth applicants for Decision without holding a hearing
The first issue, so far as the first, third and fourth named applicants are concerned is whether the Tribunal can proceed to a decision without convening a hearing. Section 106(3) of the Administrative Review Act allows the Tribunal, on the request of the Applicant to proceed to decision on the papers, providing the issues for determination can be adequately determined in the absence of the parties.
The expression “adequately determined” is not directed to the sufficiency of the evidence. It does not mean adequate so as to support a determination in favour of one or other party. It remains the responsibility of the Applicant to provide sufficient evidence (section 5AAA of the Act). Instead, consideration is given to the legislative framework under the Administrative Review Act (including section 55 right to present case) and the Migration Act (including the natural justice requirements in sections 357A and 359A).
In the present case the first, third and fourth named applicants returned to Indonesia in 2024. This fact did not come to the attention of the Tribunal until 2025 when those applicants requested a decision on the papers. It is unclear if the effect of their departure from Australia was fully appreciated by those applicants. The Tribunal accordingly gave particulars under s.359A of the Migration Act.
In the present case the Tribunal is satisfied the first, third and fourth named Applicants have had a reasonable opportunity to present their case and that the Tribunal can proceed in a way which is fair and just (s.357A(3)). See EIZ20 v. Child Support Registrar (2023) FedCFamC2G 637 at para 59 (no denial of procedural fairness) and Bushell v. Repatriation Commissioner (1992) 175CLR408.
Bearing in mind the discrete issues raised on the determination of the claims by the first, third and fourth named applicants, the Tribunal has also been able to separately consider the substituted protection claims made by the second applicant.
Primary Issue and Decision
Claims by first, third and fourth named applicants
The primary issue is whether the first, third and fourth named Applicants satisfy the eligibility requirements for protection visas. By virtue of the fact these applicants are not in Australia the Tribunal has concluded so far as concerns these applicants that the decisions under review should be affirmed.
Claims by second named applicant
The primary issue is whether the Tribunal can be satisfied there is a real chance of serious harm if the second applicant were returned to Indonesia. For the following reasons, the Tribunal has concluded that the decision under review, so far as it concerns the second applicant, should be affirmed.
Evidence and Analysis regarding first, third and fourth named applicants
As advised to the first, third and fourth named applicants by letter of 19 August 2025 it is a criterion for a protection visa that an applicant be in Australia (s.36 (2)). The first, third and fourth named applicants are not in Australia.
The applicants were given particulars of the information which is the reason or part of the reason for affirming the decision of the Delegate, namely that their presence in Australia was a criterion. There was no comment or response by the applicants.
Evidence and Analysis regarding second named applicant
Well before 17 September 2025, it was likely apparent to the second applicant and his agent, that protection claims based on covid would be difficult for him to sustain especially, as his family had been back in Indonesia for a year.
The separate protection claims of the second applicant were first advanced in the above brief email of 17 September 2025. That email refers expressly to the current anti-government protests and appears to be directed only to the present government elected in 2024.
The second applicant offered an explanation for the lateness in making this new claim that the instability and unrest in Indonesia only occurred in the last few months. In light of the terms of the 17 September 2025 email and having listened to the whole of the evidence the Tribunal has formed the view that the applicant’s concerns are based only on events over the last 12 months. On this basis the Tribunal accepts the applicant has a reasonable explanation for why this claim was not raised prior to the Delegate’s decision. The Tribunal does not draw an adverse inference under s.367A of the act.
The second applicant did not provide any supporting details as to the particular events in Indonesia that caused him concern and or why those events might cause him to have a fear of persecution. The second applicant did not suggest he had a profile any different to members of the Indonesian population generally or if there was a real risk faced by him personally.
The second applicant identified a concern that he may face a reduction in health care facilities and treatment on return to Indonesia. The Tribunal finds the second applicant did suffer a severe head injury in January 2022. There is however no medical evidence as to the current status of that injury and whether the applicant’s condition is now stable. The applicant has not been active in seeking a more recent review of his condition. There is no evidence that there is a real chance the second applicant faces serious harm due to health issues if he is to return to Indonesia in the foreseeable future.
The second applicant was quite candid that he plans to return to Indonesia. There is no evidence that the second applicant fears being persecuted on return to Indonesia by reason of his political opinions or at all. He stated he has not been active on social media over the last year. There is no reason to think that he and his political views have come to the attention of authorities in Indonesia. There is no evidence he faces serious harm if he is to return to Indonesia in the foreseeable future.
First, third and fourth named applicants do not satisfy refugee or complementary protection criterion
The Tribunal concludes the first, third and fourth named applicants do not meet the refugee criterion in s 36(2)(a), nor the alternative criterion in s.36(2)(aa) as they are not in Australia.
Second Applicant does not satisfy the refugee criterion for protection.
The Tribunal is not satisfied on the material provided that there is a real chance of harm, if the second applicant were returned to Indonesia in the reasonably foreseeable future.
Second Applicant does not satisfy the complementary protection criterion for protection.
Having concluded that the second applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied on the material provided that there is a real risk of harm if the second applicant were returned to Indonesia in the reasonably foreseeable future.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the first, third and fourth named applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) and/or s 36(2)(aa).
For the reasons given above, the Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicants or any of them satisfy s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Date of Hearing – 1 October 2025
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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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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