2217116 (Refugee)

This matter concerned two applicants seeking protection visas. Applicant two alleged she was subjected to sexual harassment and assault by the son of her employer in Indonesia, who subsequently filmed the assault and threatened to release it publicly and to her family if she did not comply with his demands. Applicant one, who is married to applicant two, claimed he feared human trafficking and persecution by a trafficking ring with government and police contacts if he returned to Indonesia. The Tribunal was required to determine whether either applicant met the criteria for a protection visa, specifically whether they had a well-founded fear of persecution or, alternatively, faced a real risk of significant harm if returned to Indonesia.

The Tribunal found that applicant two met the definition of a refugee under section 5H(1) of the Migration Act 1958 (Cth), satisfying the criterion for a protection visa under section 36(2)(a). This was based on her well-founded fear of persecution due to gender-based violence and image-based sexual abuse, which constituted membership of a particular social group. However, the Tribunal concluded that applicant one did not have a well-founded fear of persecution. It then considered the complementary protection criterion under section 36(2)(aa) for applicant one, assessing whether there was a real risk of significant harm upon removal from Australia. The Tribunal was not satisfied that applicant one would suffer significant harm, as defined by the Act, due to economic hardship or inability to obtain employment upon return to Indonesia.

Consequently, the Tribunal determined that applicant two was a person in respect of whom Australia had protection obligations, but applicant one was not. The decision was remitted for reconsideration, implying that while applicant two's claim was accepted, further consideration or orders were required regarding applicant one's status or the overall outcome for both applicants.