2217116 (Refugee)

2217116 (Refugee) [2024] AATA 3302 (28 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1816972
CASE NUMBER:2217116

REPRESENTATIVE (APP TWO):             Ms Michelle Janine Gunaratne
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Victoria Price
DATE:28 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the first name applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 28 June 2024 at 4:08pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – women – gender based violence – image based sexual abuse – employment – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, r 1.12; Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is a review application of decisions made by the delegate of the Minister under s 65 of the Migration Act 1958 (Cth) (the Act) to refuse to grant the first and second name applicants (collectively the applicants) protection visas.
First named applicant.
The first named applicant (applicant one) is [an age]-year-old man. He states he is a citizen of Indonesia, that he is of Javanese Ethnicity, and is adherent of the Muslim faith. He is the husband of applicant two.
Applicant one was granted a Maritime Crew Visa, (Subclass 988) on 3 June 2016. He arrived in Australia [in] June 2016 holding a Transit Visa which ceased [later in] June 2016. On 19 May 2017 he lodged an application for a protection visa with the Department of Home Affairs (the Department).
The delegate refused to grant the protection visa to applicant one on 5 June 2018, finding he did not satisfy the requirements of s.36(2) of the Act.
Applicant one appeared before the Tribunal on 27 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. Following the hearing the Tribunal was constituted the second named applicant’s matter once it was determined they were related.
Second named applicant.
The second named applicant (applicant two), is [an age]-year-old woman. She states she is a national of Indonesia, is of Sundanese ethnicity and follows the Muslim faith. She is the wife of applicant one.
Applicant two arrived in Australia in August 2018 and lodged an application for a protection visa on 9 October 2018.
On 16 November 2022 a delegate of the Minister refused to grant the visa to applicant two finding that she did not satisfy the criteria for the grant of the visa.
Applicant two appeared before the Tribunal on 18 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
Applicant two was represented in relation to the review, and her representative attended the hearing.
Combined decision record
Given their spouse relationship, the Tribunal determined it would be prudent to provide the parties’ one decision record. The applicants consented to receiving a joint decision.
CLAIMS AND EVIDENCE
Applicant one
Applicant one’s claims for protection were set out in his visa application and in his oral evidence to the Tribunal at his hearing.
His claims as set out in his protection visa application can be summarised as follows:
·He left Indonesia to obtain employment as maritime crew. He paid a fee of approximately $[amount]AUD to an employment agent in Yogyakarta. His parents sold their rice paddy field and other possessions and borrowed money to pay the fee.
·He has no skills other than a qualification in [occupation 1]. The agent placed him in an unskilled position on a ship and charged 10% weekly interest on the fee.
·He has heard about people being offered jobs in an unknown destination and people asked to work 24/7 with minimum pay overseas or being sold as sex slaves. As a single man he is an easy target for human trafficking, and he fears being a slave in Macau, Hong Kong, Bangkok, the USA, or Dubai if he returns to Indonesia.
·The trafficking ring has contacts in the government, police and militia and they will detect him if he returns to Indonesia. The local police accept bribes and employ militias to pick him up at any time. Sharing his story will jeopardise their trafficking business.
Applicant one provided to the Department a newspaper article regarding the experience of a female sex trafficking survivor. [1] He also provided a certificate of marriage to the Tribunal confirming he and applicant two were married in Australia [in] November 2021.
[1] Shandra Woworuntu, ‘My life as a sex-trafficking victim’, BBC News, 30 March 2016.
At the hearing applicant one confirmed his identity and familial and biographical information. He also provided further details regarding his background in Indonesia and his protection claims. This evidence is discussed below.
Evidence relating to applicant one’s background.
Applicant one was born in Central Java and resided there with his family. His parents were agricultural labourers working in rice fields. Their family owned one field and his father also worked on two others which were owned by a neighbour. His parent’s own their home and they still live there. Applicant one has [number] siblings: [number] are studying and reside with their parents; and [number] are married and live with their families. He has regular contact with his parents and [specified siblings]. He assists his parents with their finances.
He completed primary and secondary school before studying [occupation 1] at university. After completing his course, he worked in a [business 1] in West Java where he resided in rental accommodation. He worked there until about 2014, after which he returned home to assist his parents. He eventually obtained employment in a [business 2] where he worked for about six months.
His parents sold their rice field to enable the applicant to pay the fee to an employment agent so he could obtain work on a [vessel 1]. He began this work in 2016 and was employed on the ship for about 8 months. At the time his contract ceased, the boat was docked in Australia, and applicant one chose not to renew his contract. Rather, he got off the boat and stayed here. In Australia he has been employed at the same [business 1] for the past five years. He works five days a week.
Applicant one married in Australia in November 2021. He met applicant two here. She is also Indonesian and has applied for protection for her own reasons. They rent a home together and have one other housemate.
Evidence relating to applicant one’s protection claims.
Applicant one stated that his parents sold their rice field to pay an agent to assist applicant one to get a job on [vessel 1]. They also borrowed money from a relative at a rate of 5 per cent interest. Applicant one felt responsible for their debt, and believing he did not make enough money on the [vessel 1], he decided to remain in Australia when the boat docked in Sydney. The debt to the agent and the relative has been repaid, and there are no outstanding debts.
When questioned about his claims that he would be trafficked, applicant one stated these were not his claims. The agent who assisted him to make the visa application included the trafficking claims. His claims were solely related to the finances: he is responsible for helping his parents and his siblings, and it will be difficult for him to find employment on return to Indonesia.
Applicant two
Applicant two’s claims for protection were set out in her visa application, her interview with the Department delegate (which I have listened to), and in her written and oral evidence to the Tribunal.
Applicant two’s claims as provided to the Department can be summarised as follows:
·Applicant two claimed that she was sexually harassed by the son of her wealthy employer over a period of time. He eventually tricked her into going to his house where he drugged and raped her. He filmed the assault and threatened to release the video on social media.
The following material was provided to the Tribunal to support her claims:
·Submission from applicant two’s representative dated 21 June 2024.
·Country information and journal articles regarding the circumstances in Indonesia.[2]
·Medical evidence to support her current pregnancy.[3]
[2] Amnesty International, ‘The State of the World’s Human Rights- Indonesia’, April 2024 pages 198-201; Amnesty International, ‘Submission to the United Nations Committee on the Elimination of Discrimination Against Women’, 78TH Pre-Sessional Working Group, 13-17 July 2020; Muhamad Taufik Hidayat, et al, ‘Indonesia free from pasung: a policy analysis’, International Journal of Mental Health Systems, published online, 3 May 2023; Laras Susanti, ‘Why is Indonesia still failing victims of domestic violence?’, Indonesia at University of Melbourne, 28 November 2023; Fachrizal Afandi, ‘Who Will Clean up Indonesia’s dirty cop problem?’, The Jakarta Post, 9 December 2022; Lafi Munira et al, ‘Barriers and facilitators to access mental health services among people with
[3] Letter from [named doctor], dated 18 June 2024; Pathology test dated 5 June 2024; Radiology test form dated 5 June 2024.
At the hearing applicant two confirmed her identity and familial and biographical information. She provided detailed evidence regarding her background and her experiences in Indonesia. This evidence is discussed below.
Evidence relating to applicant two’s background.
Applicant two was born in Subang in West Java where she resided with her parents and [siblings] in a home they owned. Her parents were farmers, but her father no longer works due to ill-health. He has several medical conditions and requires consistent treatment and care. His mother works and is the sole income provider. [One sibling] is married with [number] children and resides in Subang and [another sibling] is at university in central Java and lives there. She speaks to her family regularly.
Applicant two completed primary and secondary school in Subang. After high school she moved out of home and resided in Subang. In June 2014 she began working in a [business 3]. She left this employment in 2016 to work as a secretary for the boss of a major [company], also in Subang. She ceased this employment about a month prior to coming to Australia in 2018 for the reasons discussed below.
In Australia applicant two is currently employed five days a week [working] at a [business 1]. She has worked with the same employer since she arrived in Australia.
Applicant two met applicant one in Australia. Consistent with his evidence, she stated they are renting a home together. She advised the Tribunal that she is now pregnant with their first child.
Evidence relating to applicant two’s protection claims.
Applicant two reiterated her claims that she was sexually harassed by the son of her boss. They first met at his father’s office when she was working as his father’s secretary. He began harassing her regularly visiting her when he came to the office and calling her constantly. He was studying at university, but he came in all the time during school breaks and holidays.
The harassment culminated in him drugging and raping her in March 2018. After the incident he advised her that he had filmed the assault: sending her a video to her phone. She deleted the copy he sent to her and asked him to delete his copy. He refused, instead threatening to release it on social media and to her family if she went to the authorities and/or did not do what he asked. He told her he could find her anywhere and at any time.
Fearful, she moved in with a friend whom she told about the assault and the blackmail. Her friend advised her to leave the county. The applicant continued her employment with her assailant’s father for several months, quitting about a month prior to coming to Australia. During that time, he did not call her directly. However, he did call the office and ask for her, including after she had left the company. Her former colleagues advised her that he continued trying to contact her until about two weeks after she left Indonesia.
As far as she is aware, her former boss and his son continue to reside in Subang, and they have mutual contacts who will tell him of her return to Indonesia. She fears he will harass her again, and/or release the video revealing the assault to her family, friends, and the community.
Her family do not know what happened, but she thinks they would not harm her if they found out. In contrast, she would face ostracization and other harm from the conservative Muslim members of the community who would blame her for the assault.
The perpetrator is from a wealth family, and he will be protected. She would like to report him to the police, but it will be pointless. They will not act, and it will just cause him to leak the video. She is traumatised by the event and very fearful of returning to Indonesia.
Application of s 423A of the Act.
In accordance with s 423A of the Act, if the applicant raises a claim or presents evidence that was not raised before the primary decision was made, and the Tribunal is satisfied that there is not a reasonable explanation for failing to do so, the Tribunal is to draw an unfavourable inference regarding the credibility of that claim or evidence.
To the extent the applicants have provided additional claims and evidence in relation to their claims, the Tribunal accepts there are reasonable explanations for this. In the case of applicant one, I accept he had the opportunity to provide claims and evidence at the tribunal hearing. In respect of applicant two, the Tribunal requested submissions from her and her representative at the conclusion of the hearing. I am not satisfied that there are not reasonable explanations for failing to provide any additional claims and evidence prior to the making of the primary decision. Section 423A does not apply.
OVERVIEW OF CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (DFAT), and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case there is a real chance the applicants will be persecuted on return to Indonesia or, if not, whether there is a real risk they will suffer significant harm if removed from Australia to that country.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of reference and s 36(3)
The applicants have both provided evidence of their Indonesian nationality, including copies of the passport. I find they are Indonesian nationals and that this is their receiving country.
There is nothing in the evidence before me to indicate that the applicants have a right to enter and reside in any country apart from Indonesia and I am not satisfied that they do. I find that s 26(3) does not apply in this case.
Refugee Assessment
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
Background and credibility
I accept on the evidence before me that the applicants are married. I accept they reside together in rented accommodation. I accept that applicant two is currently pregnant with their first child.
The applicants’ respective evidence was presented in a manner indicative of genuine lived experience: it was sufficiently detailed and not exaggerated. I find that they are both credible witnesses.
Assessment: claims of applicant one
Applicant one’s evidence was that the agent who assisted him to make the visa application included the trafficking claims, these were not his claims. I find that applicant one does not fear being trafficked on return to Indonesia and nor am I satisfied this claim arises on the material before me. I have not considered this matter further.
Applicant one’s evidence was that the debts to the employment agent and their relative have been repaid, and there are no outstanding debts. I accept this evidence and find that the applicants do not face a real chance of any harm for this reason on return to Indonesia now or in the reasonably foreseeable future.
Applicant one stated that he is responsible for helping his parents and his siblings, and it will be difficult for him to find employment on return to Indonesia. I accept that he assists his family financially, particularly given they had to sell their rice paddies to help him come to Australia.
As discussed with applicant one at hearing, according to the World Bank, Indonesia's economy is the largest in Southeast Asia and sixteenth largest globally, as measured by GDP.[4] The International Monetary Fund stated that the economy grew 5.3 per cent in 2022, and it projected further growth of 5 per cent in 2023. [5] Poverty has more than halved since the turn of the century and the numbers of those in poverty are falling, and according to Statistics Indonesia, as of August 2022, the unemployment rate was 5.8 per cent.[6]
[4] Department of Foreign Affairs and Trade (DFAT), 'Country Information Report Indonesia', 24 July 2023 (DFAT Indonesia Report) at [2.7] –[2.11].
[5] DFAT Indonesia Report at [2.7] –[2.11].
[6] DFAT Indonesia Report at [2.7] –[2.11].

The most recent DFAT report states that there are several major industries in Indonesia including, resources (crude petroleum and natural gas), agriculture (such as coffee, rubber, cocoa, sugar, palm oil and tobacco) and manufacturing. The services sector (including transport, communications, tourism, and financial services) is also increasingly driving Indonesia's economy.[7] Many Indonesians also work in the informal sector, including in small and medium enterprises, as contractors, or in the 'gig economy', for example driving cars or motorcycles hired through a mobile phone application.[8] Personal connections, for example through family, previous work or within one's own ethnic group, are helpful, but not essential, for finding informal employment.[9]
[7] DFAT Indonesia Report at [2.7] –[2.11].
[8] DFAT Indonesia Report at [2.7] –[2.11].
[9] DFAT Indonesia Report at [2.7] –[2.11].
In this case applicant one has completed secondary education and has undertaken studies in [occupation 1] which is a growing industry in Indonesia. Prior to graining work on a [vessel 1], he worked in a [business 1] and a [business 2]. He has also gained skills in Australia, working at the same [business 1] for the past five years. Having regard to his employment experience in Indonesia and Australia, and the above country information, I am not satisfied that he will not be able to obtain employment on return such that he and his wife will be unable to obtain accommodation, access basic services, or that they otherwise face treatment amounting to serious harm for this reason on return to Indonesia now or in the reasonably foreseeable future.
While I accept any employment applicant one can obtain may not be at the same level and conditions as he has been able to obtain in Australia, I am not satisfied that this or any issues faced by the applicants due to the economy is due to any intentional conduct on the part of the government or anyone else aimed at the applicants for a s.5J(1)(a) reason. Rather, as discussed at the hearing, this is a situation faced by all Indonesians.
Assessment: claims of applicant two
Applicant two has claimed to fear harm due to her sexual harassment, rape and blackmail perpetrated by the son of her former boss.
Country information
Relevantly, information states that high rates of gender-based violence are found to occur where women are accorded less value and access to power than men.[10] Societal factors which support an inferior status for women and drive domestic and family violence include rigid stereotypes about the roles of women and men in the family and society, beliefs in dominant forms of masculinity and men’s control of decision-making, limits on women’s independent in public and private life and social attitudes condoning violence against women. [11]
58.In Indonesia, women are disadvantaged by conservative social, religious and patriarchal attitudes regarding the place of women in society.[12] Women without husbands have less ‘social access’, which leads to fewer opportunities for social and economic advancement.[13] Circumstances for those with husbands are also difficult. Anti-discrimination laws in employment exist but are not effectively enforced.[14] Between 2006 and 2022 the female labour force participation rate averaged about 50 per cent, and in 2023 it was 53 per cent, compared to 81.5 per cent for men in 2022.[15] Indonesia’s female labour participation rate is lower than other comparable Southeast Asian countries.[16] Women generally earn about 30 percent less than men, and there are laws stating that a women’s work outside the home cannot conflict with their role in improving family welfare and educating the younger generation.[17] These laws also designated the man as the head of the household.[18]
59.In terms of political participation, the proportion of seats held by women in the national parliament declined to 21.57 percent in 2023.[19] DFAT also advises that women and girls experience discrimination in the application of customary law (adat), which may have the same force of law as statutes and favour existing patriarchal structures embedded in local cultures.[20] For example, inheritance is sometimes denied to women under adat laws. DFAT states that Indonesia does not have no-fault divorce and women might have difficulty proving the grounds for divorce.[21] According to the United Sates Department of State (USDOS), females experience social stigma and bullying related to menstruation, and female students have inadequate access to menstrual education, hygiene products, and hygienic facilities which leads to high rates of absenteeism.[22]
[10] Department of Prime Minister and Cabinet, National Strategy to Achieve Gender Equality Discussion Paper, 2023; Our Watch, ‘The link between gender inequality and violence against women’, ourwatch.org.au, accessed 28 June 2024; see also Australasian Institute of Judicial Administration (AIJA) et al, ‘National Domestic and Family Violence Bench Book’, last updated June 2023 (National Domestic and Family Violence Bench Book).
[11] Department of Prime Minister and Cabinet, National Strategy to Achieve Gender Equality Discussion Paper, 2023; Our Watch, ‘The link between gender inequality and violence against women’, ourwatch.org.au, accessed 28 June 2024; see also Australasian Institute of Judicial Administration (AIJA) et al, ‘National Domestic and Family Violence Bench Book’, last updated June 2023 (National Domestic and Family Violence Bench Book).
[12] DFAT Indonesia Report at [3.94].
[13] DFAT Indonesia Report at [3.94].
[14] DFAT Indonesia Report at [3.94].
[15] World Bank, ‘Labor force participation rate, female (% of female population ages 15+) (modelled ILO estimate) – Indonesia, worldbank.org, accessed 28 June 2024; World Bank, ‘Labor force participation rate, male (% of male population ages 15+) (national estimate) – Indonesia’, worldbank.org, accessed 28 June 2024; Fayzuah Mukhlisah, ‘Supporting self-employment to solve female labor force participation problem’, The Jakarta Post, 4 March 2024; and Australia Indonesia Partnership for Economic Governance (AIPEG), DFAT and Centre for Development Economics and Sustainability (CDES), ‘Women’s Economic Participation in Indonesia’, Monash University June 2017.
[16] Fayzuah Mukhlisah, ‘Supporting self-employment to solve female labor force participation problem’, The Jakarta Post, 4 March 2024; and Australia Indonesia Partnership for Economic Governance (AIPEG), DFAT and Centre for Development Economics and Sustainability (CDES), ‘Women’s Economic Participation in Indonesia’, Monash University June 2017.
[17] United States Department of State (USDOS), ‘Indonesia Human Rights Report’,22 April 2024 (UDSOS Indonesia Human Rights Report) page 43
[18] USDOS Indonesia Human Rights Report, page 43.
[19] Mona Siahaan, ‘Indonesia: proportion of seats held by women in national parliament 2023’, Statista, June 7 2024, accessed 28 June 2024; Indonesia | House of Representatives | Data on women | IPU Parline: global data on national parliaments, accessed 28 June 2024.
[20] DFAT Indonesia Report at [3.84].
[21] DFAT Indonesia Report at [3.94].
[22] USDOS Indonesia Human Rights Report, page 46.
Muslim and non-Muslim women and girls in Indonesia have faced increasing legal and social demands to wear clothing deemed Islamic as part of broader efforts to impose the rules of Sharia, or Islamic law.[23] In some provinces regulations mandate women and girls wear the jilbab or hijab in schools, in the civil service, and at government offices.[24] Even in the absence of such regulations or policies, there is increasing social pressures to conform to these standards of dress.[25] For example, a lecturer at a public university in Jakarta advised that billboards were placed on campus advising all women to wear Islamic attire, in circumstances where the official university policy only required ‘decent clothing’.[26] Mandatory dress codes are viewed as a broader attack on gender equality and the ability of women and girls to exercise their rights to education, livelihood, and social benefits. Human Rights Watch states that the threat of being denied an education or job is an effective means of persuading woman and girls to conform to dress codes and has considerable adverse psychological impacts.[27]
[23]DFAT Indonesia Report at 3.87]; Human Rights Watch, ‘I wanted to Run Away Abusive Dress Codes for Women and Girls in Indonesia’, March 2021, page 1; Human Rights Watch, ‘Updated Submission to the Committee on the Elimination of Discrimination against Women Review of the Combined State Party Report for Indonesia 80th Session - September 2021, page 1.
[24] Human Rights Watch, ‘I wanted to Run Away Abusive Dress Codes for Women and Girls in Indonesia’, March 2021, page 1; and Human Rights Watch, ‘Updated Submission to the Committee on the Elimination of Discrimination against Women Review of the Combined State Party Report for Indonesia 80th Session - September 2021, page 1 and 2.
[25] Human Rights Watch, ‘I wanted to Run Away Abusive Dress Codes for Women and Girls in Indonesia’, March 2021, page 1 – 3.
[26] Human Rights Watch, ‘I wanted to Run Away Abusive Dress Codes for Women and Girls in Indonesia’, March 2021, page 2.
[27] Human Rights Watch, ‘I wanted to Run Away Abusive Dress Codes for Women and Girls in Indonesia’, March 2021, page 2.
According to the most recent DFAT report, violence against women, including rape, is against the law.[28] In April 2022, the government passed ‘Law No. 12 of 2022 on Sexual Violence Crime (Law 12/2022) (the Sexual Violence Law). Among other things, this prohibits certain kinds of harassment and assault and criminalises electronic based sexual violence.[29] The sexual violence law also states that police cannot refuse a report of sexual abuse and are duty-bound to investigate.[30] Relevantly, violent incidents outside the home are not covered by the law.[31] In the first year of operation the sexual violence law was not effectively enforced; sentences were light and convicted rapists received only minimum sentencing.[32] Police operate special crisis rooms or women’s desks across the country where female officers receive reports from female and child victims of sexual assault and trafficking and offer victims temporary shelter.[33] However, as noted in more detail below, women remain reluctant to report gender based violence, and the enforcement of laws is ineffective.
[28] DFAT Indonesia Report at [3.86].
[29] International Commission of Jurists (ICJ), ‘Indonesia: Law No.12 of 2022 on Sexual Violence Crimes and Online Gender-Based Violence Against Women’, Legal Briefing September 2023 (ICJ Report), page 1.
[30] ‘Indonesia finally has a law to protect victims of sexual violence. But the struggle is not over yet’, The University of Melbourne, 20 April 2022; ‘Why is Indonesia’s sexual violence law so important?’, Aljazeera, 14 April 2022.
[31] DFAT Indonesia Report at [3.86].
[32] UDSOS 2023 Human Rights Report, page 29.
[33] USDOS, 'Country Reports on Human Rights Practices for 2022 Indonesia',20 March 2023, section 6, page.30.
Despite positive developments, DFAT reports that violence against women remains a significant problem. Conservative values and strong patriarchal norms are used to justify gender based violence.[34] Information states that these values are strongly ingrained in the social systems, resulting in the reluctance of victim survivors to inform the authorities or their families of the abuse.[35] Victim-blaming ideologies grounded in conservative values are prevalent within state agencies including the police and court officials, and victims who do report their abuse are often dismissed or shamed for seeking help.[36] Similarly, if their assaults, or any police reports for assaults, become known victim survivors are subject to adverse public scrutiny in which they are blamed for the abuse, and may be ostracised at work, by the community and their families.[37] Conservative societal norms allow perpetrators to act with impunity, and even if police are notified perpetrator are unlikely to be held to account for their actions.[38]
[34] Norc and the University of Chicago and the International Center for Research on Women (ICRW), ‘Technology-Facilitated Gender Based Violence in Asia’, 2022, (ICRW 2022 Report), page 13.
[35] ICRW 2022 Report page 3
[36] ICRW 2022 Report, page 3
[37] DFAT Indonesia Report at [3.38] and [3.89]
[38] ICRW 2022 Report, page 3; and DFAT Indonesia Report at [3.89].
The National Commission on Violence against Women reported a significant increase in known cases of all types of violence against women in 2021.[39] In West Java recorded the highest rates of violence.[40] Instances of technology facilitated gender-based violence, also known as Image, based sexual abuse (IBSA), are prevalent in Indonesia.[41] In 2017, Komnas Perempuan, the Indonesian National Commission on Violence Against Women, identified IBSA as rising trend.[42] There has been a steady increase in the numbers, with dramatic spikes occurring at the start of the COVID-19 pandemic. Komnas Perempuan received 940 reports in 2020, which represented a nearly 400 percent increase from 2019.[43]
[39] Katharina R Lestari, ‘Indonesia records sharp rise in violence against women - UCA News’ 9 March 2022.
[40] Katharina R Lestari, ‘Indonesia records sharp rise in violence against women - UCA News’ 9 March 2022.
[41] ICRW 2022 Report, page 3; and ICJ Report page 2.
[42] ICRW 2022 Report page, 2: and ICJ Report page 2.
[43] ICRW 2022 Report page, 2: and ICJ Report page 2.
IBSA is defined as non-consensual creation, distribution or threatened distribution of nude or sexual images, including non-consensual sexual assault and rape.[44] It is a form of sexual violence and coercive control, and one of many tactics used by abusers to isolate and entrap victims within relationships or, after relationships cease, to control, intimidate, punish, and degrade them.[45] Crucially, perpetrators are not always current or former intimate partners but include individuals who use these images to extort victims for money, sexual favours, or additional intimate images.[46] In cases where the images were generated through an assault, offenders can threaten to distribute images to further coerce and victimise, and can actually distribute the images to cause further harm or abuse to their victims.[47]
[44] Henry, N., Gavey, N., & Johnson, K, ‘Image-Based Sexual Abuse as a Means of Coercive Control: Victim-Survivor Experiences. Violence Against Women’, online first, 2022 (hereinafter ‘IBSA as a Means of Coercive Control: Victim-Survivor Experiences. Violence Against Women Report’); Henry, Nicola, Asher Flynn and Anastasia Powell, ‘Image-based sexual abuse: Victims and perpetrators’, Australian Institute of Criminology Report No. 572, March 2019 (hereinafter Australian Institute of Criminology Report); Henry, Nicola, Anastasia Powell and Asher Flynn, ‘Not Just ‘Revenge Pornography: Australians’ Experiences of Image-Based Abuse - A Summary Report’, RMIT University, 2017 (hereinafter RMIT University Report): Antonia Quadara and Sharnee Moore, ‘The role of emerging communication technologies in experiences of sexual violence’, February 2013 (hereinafter ‘Quadara and Moore Report); and see also National Domestic and Family Violence Bench Book.
[45] IBSA as a Means of Coercive Control: Victim-Survivor Experiences. Violence Against Women Report; Australian Institute of Criminology Report; RMIT University Report: Quadara and Moore Report; National Domestic Family and Violence Bench Book; and Aina M. Gassó el al, ‘Psychopathological aspects of sexting and IBSA perpetrators: A brief research report’, Front Psychiatry, 29 September 2022 (the Front Psychiatry Report).
[46] ICRW 2022 Report, page 2.
[47] Quadara and Moore Report; IBSA as a Means of Coercive Control: Victim-Survivor Experiences. Violence Against Women Report; Australian Institute of Criminology Report; and RMIT University Report.
Research indicates that males are more likely to perpetrate IBSA, and females more likely to be victimised by it and fear for their safety.[48] Information also states that victims of IBSA experience high levels of psychological distress encompassing a wide range of psychological, relational and social issues.[49] This includes, for example, anxiety, depression, and a sense of loss of control over their bodies, including where there is a threat to disseminate the material.[50] One study notes victims are left in an constant state of fear.[51]
[48] RMIT University Report.
[49] RMIT University Report.
[50] Journal of Family Violence Report, pages 1-24.
[51] Antoinette Huber, ‘A shadow of me old self’: The impact of image-based sexual abuse in a digital society, International Review of Victimology 2023 29:2, 199-216.
DFAT states that here are safehouses for victim survivors of family violence, which can provide legal and counselling services, though these are not available in every part of the country and are most likely accessible in urban centres.[52] These services do not have the capacity to help all the women who need them.[53] Moreover, DFAT advises that long delays are common in both criminal and civil cases, and in extreme cases, can take decades or longer to resolve.[54] Access to justice is often not possible for people without means. Legal aid and NGO’s can assist, but their resources are limited and cannot meet the demand.[55] More generally police are limited in their ability ‘to respond quickly and efficiently to reports of crime and other emergencies due to insufficient transportation, inadequate training, and limited investigative ability.[56]
Findings
[52] DFAT Indonesia Report at [3.92].
[53] DFAT Indonesia Report at [3.92].
[54] DFAT Indonesia Report at [5.7].
[55] DFAT Indonesia Report at [5.7].
[56] Overseas Security Advisory Council (OSAC) 'Indonesia Country Security Report', 30 January 2023.
In this case, applicant two provided highly detailed and specific evidence regarding her harassment and sexual assault, including naming her attacker, detailing how they met and the treatment to which she was subject. Her evidence was consistent throughout the protection visa assessment at the department stage, and the review process. Her evidence is also consistent with independent information on IBSA and the experience of women in Indonesia discussed above.
On the evidence before me, I accept that applicant two is a victim survivor of sexual harassment and rape perpetrated by her boss’ son in March 2018. I also accept that he filmed his assault of her and has threatened to release it on social media and to her family and friends. I accept that this has psychologically traumatised applicant two. I accept that she has experienced treatment amounting to serious harm, being significant physical harassment and ill-treatment and psychological harm.
The Court has confirmed that ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance, and a person may have a well-founded fear of persecution even though there is only a 10 per cent chance of the persecution occurring.[57] I have considered that events against applicant two occurred some time ago, and that to her knowledge, her assailant has not yet released the video despite his threats. However, I do not consider this ameliorates the real chance of any harm to applicant two on return to Indonesia now or in the reasonably foreseeable future.
[57] Chan v MIEA (1989) 169 CLR 379.
Applicant two’s evidence, which I accept, is that she will return to Subang to be with her family. I also accept that applicant two’s assailant continues to reside in that area, and that he looked for her after her departure from the country. I accept they have mutual friends and acquaintances who also continue to reside in the same area. In these circumstances, I accept there is a real chance he will learn of her return, and based on his past behaviour, I find there is a real chance he will resume his sexual harassment of applicant two. I accept this constitutes significant physical and psychological harassment and ill treatment.

The information above also indicates that IBSA is gender based, is about control, and is a means for perpetrators to further intimidate, degrade and punish their victims. I find that applicant two will resist the advances of her perpetrator, as she has done in the past, and in these circumstances, there is a real chance he will use the existence of this video to harass, extort or further physical assault her. I also find that there is a real chance that he will release the video. Applicant two’s evidence, which I accept, is that her family will not harm her and will support her. However, on the information set out above, I find the release of the video will result in applicant being ostracized from the community which, among other things, will limit her ability to obtain employment and lead her to experience significant stigma and shame. I accept this treatment amounts to serious harm.[58]
[58] USDOS page 42
Moreover, research on the effects of IBSA states that interactions such as this are often permanently recorded and create ongoing ramifications for such behaviour that would not previously have been possible. [59] Rather than a single act, researchers have indicated that this type of harm should be viewed as a continuum of harm with a wide range of abuses based on the creation, distribution and/or the threat to disseminate the material.[60] As noted above, the ongoing nature of the threat causes serious psychological harm. In this case, I accept that IBSA is of itself a form of sexual violence. I also find that the psychological harm experienced by applicant two due to the ongoing nature of the threat of its dissemination will be ever present on her return to Indonesia, and I accept this also constitutes a real chance of serious harm to applicant two. In all of the circumstances, I am not satisfied that her marriage to applicant one ameliorates the real chance of harm to applicant two.
[59] Quadara and Moore Report.
[60] Journal of Family Violence Report pages 1-24.
I find that the applicant faces a real chance of serious harm in the form of significant physical harassment and ill-treatment and significant psychological harm, on return to Indonesia now or in the reasonably foreseeable future. Given his past pattern of behaviour, I accept her former assailant will seek to find her elsewhere in Indonesia, and even if he does not, he can release the video of her sexual assault online from anywhere in the country leading her to face harm throughout Indonesia. I find that relocating within Indonesia would not ameliorate the chance of harm to applicant two. I find that the real chance of serious harm arises throughout the country. I also find that the harm involves systematic and discriminatory conduct on the part of her persecutor.
I find that ‘women in Indonesia’ constitutes a particular social group as that term is defined: and find that the shared characteristic is their gender, not a shared fear persecution. On the country information above, I find that the deeply entrenched gender stereotypes and traditional views legitimise violence against women at the societal and state level. I find that violence against women in Indonesia is gender based as is IBSA. In circumstances where violence against women is normalised at the societal level, I find that the essential and significant reason that applicant two faces harm from her former abuser is because of her gender and her membership of the identified particular social group.
As noted, there is new legislation in place to protect victim survivors of gender-based violence. However, information above indicates these laws have not been effectively enforced and perpetrators are largely unaccountable for their actions. Overall, information above, including from DFAT, is that despite some improvements, a range of factors continue to create difficulties for women subjected to violence to report it, gain adequate state protection, and/or leave harmful settings safely. Having regard the information above I find that effective protection measures are not available for the harm faced by applicant two.
I find that it would not be reasonable for applicant two to modify her behaviour, as to do so requires her to conceal an innate or immutable characteristic, being her gender. This an impermissible modification for s 5J(3)(b). I find s 5J(3) does not apply.
I accept that applicant two has a well -founded fear of persecution.
Applicant one stated that his hearing that he was aware of the treatment to which applicant two was subject, and the nature of her future fears of harm. When asked by the Tribunal if he feared any harm for these reasons, he said he did not. Moreover, there is no suggestion from applicant two’s evidence or the relevant country information, to indicate that the applicant one faces a real chance of any harm for any reason associated with applicant one’s sexual harassment, rape, or the future release of the video. Nor is there anything to indicate that applicant two’s assailant will harm applicant one for any reason. Accordingly, I find applicant one does not face a real chance of harm for this reason on return to Indonesia now or in the reasonably foreseeable future.
On the totality of the evidence before me, including the findings above, I find applicant one does not have a well-founded fear of persecution on return to Indonesia.
Refugee: conclusion
Applicant two meets the requirements of the definition of refugee in s.5H(1). The Tribunal is satisfied that applicant two is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Applicant one does not meet the requirements of the definition of refugee in s.5H(1). The Tribunal is not satisfied that applicant one is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary Protection Assessment
Having concluded that applicant one does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative, complementary protection, criterion in s 36(2)(aa).
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 Court has confirmed that ‘real chance’ and ‘real risk’ involve the same standard.[61]
[61] MIAC v SZQRB (2013) 210 FCR 505.
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision. Relevantly, a person will suffer ‘significant harm’ if:
·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.
The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are in turn defined in s.5(1) of the Act.
For the reasons set out above, I find that applicant one will not be unable to obtain employment on return such that he and his wife will be unable to obtain accommodation or access basic service. Nor am I satisfied that the otherwise face treatment amounting to significant harm for this reason on return to Indonesia.
While I accept any employment applicant one can obtain may not be at the same level and conditions as he has been able to obtain in Australia, having regard to the information above, I am not satisfied that this or any issues faced due to the economy amounts to significant harm as defined: it does not amount to an arbitrary deprivation of his life; the death penalty; or torture. Nor is severe pain or suffering, or pain or suffering that is intentionally inflicted. Nor is it intended to cause extreme humiliation which is unreasonable. I do not accept this gives rise to a real risk of significant harm for the purpose of s 36(2)(aa) of the Act.
I have otherwise found that the applicant one does not face a real chance real chance of harm for the reasons set out above. As real chance and real risk involve the same standard, I also find on the evidence discussed above, that these matters do not give rise to a real risk of harm to applicant one on return to Indonesia for the purpose of s 36(2)(aa) of the Act.
Complementary protection conclusion
There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that applicant one will suffer significant harm.
Accordingly, the Tribunal is not satisfied that applicant one is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Applicant one: member of the family unit of a person who meets s.36(2)(a).
I have found above that applicant two satisfies s 36(2)(a). Accordingly, I must consider whether applicant one satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a).
Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouses.
Spouse has the meaning given in s 5F of the Act. This states that a person is a spouse of another person if they are in a married relationship. Persons are in a married relationship if: they are in a valid marriage; they have a mutual commitment it a shared life to the exclusion of others; the relationship is genuine and continuing; and they live together or do not live separately and apart on a permanent basis.
The applicants provided clear and consistent evidence to the Tribunal regarding how they met, the development of their relationship, and their living circumstances. Their evidence demonstrated they are aware of each other’s respective backgrounds in Indonesia. I accept they were validly married in Australia in November 2021, they live together, and have a child on the way and have plans for a future life together. There is nothing to suggest that they not in an exclusive relationship and I accept that they are mutually committed to a life together, their relationship is genuine and continuing, and they live together. I accept they are in a married relationship as defined and that they meet the definition of spouse in the regulations.
For the purpose of this assessment, I find that applicant two is the family head, and that applicant one is the spouse of the family head for reg 1.12(4)(a). I find that applicant one is a member of the family unit of applicant two, and that he is a member of the same family unit of applicant two.
I find that applicant one is a member of the same family unit of a person who meets s 36(2)(a) and find that he meets s 36(2)(b)(i).
Concluding paragraphs
For the reasons given above the Tribunal is satisfied that applicant two is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that applicant one is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that applicant one is the spouse of applicant two and is a member of the same family unit as applicant two for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the applicant two’s application. It follows that applicant one will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the first named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Victoria Price
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

mental disorders in Indonesia: A qualitative study’, Belitung Nursing Journal, published online 18 April 2023; and US Department of State (USDOS), ‘2022 Country Report on Human Rights Practices: Indonesia’, 20 March 2023 (USDOS Human Rights Report 2023).

[2024] AATA 3302

28 June 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies