2302299 (Refugee)
[2025] ARTA 1369
•26 May 2025
2302299 (Refugee) [2025] ARTA 1369 (26 May 2025)
DECISION AND
REASONS FOR DECISION
Representative: Ms Simone Cameron
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2302299
Tribunal:General Member L Hill
Date:26 May 2025
Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 26 May 2025 at 4:46pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – LGBTI – lesbian women – religion – Christian – bullied, threatened and verbally abused – rejected by family – new claims – physically assaulted by former partner – fears harm from family, the public and the law enforcement agencies – real chance of serious harm – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 367A, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin v MIEA [189] HCA 62
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 7 February 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Indonesia, applied for the visa on 26 August 2019. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 9 May 2025 to give evidence and present arguments. As requested by the applicant, a support person, Ms [A] attended the hearing. The Tribunal hearing was conducted predominately in English with the assistance of an interpreter in the Indonesian and English languages, as required.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
BACKGROUND
The applicant is [an age]-year-old female. She arrived in Australia [in] May 2019 on a Work and Holiday (subclass 462) visa. She has provided to the Tribunal a copy of the biodata/biographical page of her Republic of Indonesia passport.
Evidence before the Department
The applicant lodged her application for the protection visa with the Department of Home Affairs (the Department) on 26 August 2019.
In summary, in the application, the applicant claimed she left Indonesia because of her sexual orientation. She identifies as a lesbian. In Indonesia, she was treated like rubbish, bullied, threatened and verbally abused by friends from university, neighbours and the community because of her sexual orientation. She hid her sexual orientation and was unable to be herself because of the fear that she would be judged and/or mistreated. She believes if she returns to Indonesia, and people come to know about her sexual orientation, she will be discriminated against, mocked, verbally abused, sexually harassed or raped. This will have an impact on her mental health. She will also be alienated by society and unable to find work. LGBT people are not treated as humans in Indonesia. She stated that she is also unable to seek the protection of the authorities or relocate to avoid the harm she fears as the laws in Indonesia violates the rights of members of the LGBT community. These laws make it possible for her to be arrested and imprisoned. Identifying as an LGBT person in Indonesia is forbidden as it is viewed as not being in accordance with Indonesian values.
On 4 October 2022, the Department sent a request for more information letter to the applicant. In summary, the applicant was advised that she had not provided key details about her sexuality and the harm she had claimed to have suffered, such as experiences, dates and locations. She was invited to provide further information and documentary evidence in support of claims. She was advised that if she was unable to provide more information or documents in support; she was to provide a detailed explanation of why she couldn’t provide them, and details of any efforts made to obtain them.
On 8 November 2022, the Department received an email from the applicant’s representative. This email attached a completed ‘Appointment of registered migration agent, legal practitioner or exempt person’ form appointing Ms Ling Jiang from the Refugee and Immigration Legal Service as the applicant’s representative, and documents in support of the applicant’s claims for protection. This email also provided the following new information and documents:
·Applicant’s statutory declaration dated 8 November 2022 (‘2022 statutory declaration’) addressing the Department’s request for more information.
·The applicant is in a genuine and continuing relationship with her partner, [Partner A]. They currently live together.
- Documents labelled as “Exhibit WR 01 to WR19” were provided as documentary evidence in support of this relationship.
·The applicant has been diagnosed and is receiving ongoing treatment for [Health condition 1].
- Document labelled as “Exhibit WR20”, a letter from [a medical service provider] was provided in support of her medical condition and treatment.
·The applicant was previously in a relationship with [Ex-partner 1]. They separated in late 2019 when [Ex-partner 1] returned to Indonesia.
- Documents labelled as “Exhibit WR 21 to WR25” were provided as documentary evidence in support of this relationship.
The applicant was not interviewed by the delegate of the Minister for Home Affairs (the delegate).
On 7 February 2023, the delegate decided to refuse to grant the applicant a protection visa under s 65 of the Act. The delegate accepted that the applicant is a lesbian who because of her sexual orientation has faced some low-level discrimination and harassment while in Indonesia. The delegate also accepted that the applicant subjectively fears that she will be harmed because of her sexual orientation if she returns to Indonesia. However, after a consideration of the country information, the delegate was not satisfied that the applicant, with her profile, would face a real chance of serious harm if she were to return to Indonesia. Nor was the delegate satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Indonesia, there was a real risk she would suffer significant harm. Consequently, the delegate found that the applicant was not a person in respect of whom Australia has protection obligations as provided under ss 36(2)(a) or 36(2)(aa) of the Act.
Evidence before the Tribunal
The applicant lodged an application for review, in relation to the decision to refuse to grant the protection visa, with the Tribunal on 20 February 2023. Attached to the application was a copy of the delegate’s refusal notification letter and decision record dated 7 February 2023.
On 22 January 2025, the Tribunal emailed the applicant and advised that her application for review was being prepared to be given to a Tribunal Member. She was asked to complete a ‘Pre-hearing information’ form and return it to the Tribunal within seven days.
On 27 January 2025, 10 February 2025 and 11 February 2025, the Tribunal received emails from the applicant. These emails referred to and/or provided the following documents:
·Completed ‘Pre-hearing information’ form dated 27 January 2025. In this form the applicant provided more information about her claims for protection. In summary, she reiterated that she had applied for protection because of the constant discrimination and persecution she faced because of her sexual orientation. In the past, she has been rejected by her family, excluded from studies and physically attacked by extremist groups. She contended that the articles and reports she has provided show that in Indonesia, LGBTQ+ are regularly targeted by government and society.
·A ‘Table of Evidence’ providing a summary of 43 articles and reports which she contended evidence how LGBTQ+ people in Indonesia face danger, such as violence, discrimination and new laws targeting LGBTQ+ people.
·A copy of the articles and reports referred to in the ‘Table of Evidence’. She contended that the articles and reports highlight the systematic discrimination and violence against LGBTQ+ in Indonesia and the impact of the new criminal code which will make same-sex relationships even more dangerous by criminalising sex outside of marriage.
On 28 January 2025, the Tribunal received an email from the applicant. In summary, the applicant requested that the Tribunal make a favourable decision in relation to her case without a hearing. She contended that the delegate had accepted that she was a lesbian and faced discrimination and harassment in Indonesia but suggested, that in contrast to the delegate’s findings, it would not be reasonable for her to modify her behaviour to keep a low profile to avoid serious harm, if she was forced to return to Indonesia. Several Tribunal decisions were referred to in support of her contention that LGBTQI people from Indonesia have been found to be owed protection. She also provided an extract from the DFAT Country Information Report Indonesia which indicated that LGBTI individuals face a moderate risk of official discrimination due to national laws that discriminate against them based on their sexuality, and due to official attitudes.
On 10 February 2025, the Tribunal received an email from the applicant’s representative. This email attached a completed ‘Appointment of registered migration agent, legal practitioner or exempt person’ form appointing Ms Simone Cameron from the Refugee and Immigration Legal Service as the applicant’s representative.
On 3 April 2025, the Tribunal emailed the representative an invitation requesting the applicant to a hearing at the Brisbane Registry, scheduled for 9 May 2025. The applicant was asked to read and complete the enclosed ‘Response to hearing notice’ (notice) and return it to the Tribunal.
On 8 April 2025, the representative emailed the Tribunal. Attached to the email was a completed notice confirming that the applicant would attend the hearing. She also requested the assistance of an Indonesian interpreter for the hearing. It was also noted that further documents including a statutory declaration, written statements and legal submissions would be provided to the Tribunal prior to the hearing. A request for oral evidence to be taken from the applicant’s partner, [Partner A] was also made.
On 14 April 2025, the Tribunal responded to the representative and advised that the Tribunal Member had approved the attendance of the proposed witness, [Partner A] by video.
On 2 May 2025, the representative emailed the Tribunal. The representative advised that the witness, [Partner A] was no longer available to attend the hearing and instead had provided her evidence in a statutory declaration. Attached to this email was the following:
·Applicant’s statutory declaration dated 2 May 2025 (‘2025 statutory declaration’),
·Statutory declaration of [Partner A] dated 24 April 2025 and a copy of her student card and passport, and
·Statutory declaration of [Ms A] dated 27 April 2025,
·Statutory declaration of [Ms B] dated 16 April 2025,
·[Wellbeing group 1] Certificate dated 1 April 2025, and
·Legal submissions dated 2 May 2025.
On 8 May 2025, the representative emailed the Tribunal and on the applicant’s behalf, requested permission for the applicant’s support person, Ms [A], to attend the hearing. The applicant had instructed that the presence of this support person would help her remain calm and grounded. The same day, the Tribunal responded and advised the Tribunal Member had considered and approved the request for the attendance of Ms [A] as a support person.
On 9 May 2025, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant’s representative, Ms Simone Cameron and support person, Ms [A] also attended the hearing. The Tribunal hearing was conducted predominately in English with the assistance of an interpreter in the Indonesian and English languages, as required.
The Tribunal has considered the material before it, including the applicant’s claims and evidence set out in the application for a protection visa, 2022 statutory declaration, 2025 statutory declaration, various supporting witness statutory declarations, reports and articles and her evidence at the hearing. While it is not necessary to set out in full the applicant’s evidence at the hearing, the applicant’s core claims were discussed, and a summary is set out below.
Relationship with family members in Indonesia
At the Tribunal hearing, the applicant confirmed she was born in Medan in Sumatra in Indonesia. She was asked to confirm her religion. She stated that she identifies as a Christian Protestant but no longer practices her faith. This is in contrasts with her family who are conservative Christians. Her family practices their faith by attending church and community worship and reading the bible. She was asked why she stopped practising her faith. She stated that she always thought God did not like her. She started to believe this after her family rejected her. She stated that she doesn’t believe she deserves to pray to God. Her family believes her sexual orientation is a sin. However, her thoughts on religion have changed since being in Australia. Here she has been able to live openly and love herself and it doesn’t matter what God thinks of her.
The applicant was asked when she last resided with her family in Sumatra. She stated after she graduated from university in [year]. She confirmed that her family still resides in the family home where she was raised. The family home is in a rural area approximately [specific distance] from Medan city. She believes only her mother and some relatives live there now. Her father has passed away. She was asked how her mother supports herself. She stated that her mother has a [type of] business. Her mother [provides a service]. Her mother also receives a small pension as her father was previously employed in a government job. She was asked when she last spoke to her mother. She stated that she doesn’t contact her mother very often. They last spoke a few months ago by phone. She contacted her and asked how she was doing. She worries for her mother as she is getting older. Her mother told her she was good and asked the applicant when she was getting married. She said her mother knows she is a lesbian, but she hopes she can return and be a normal woman.
The Tribunal asked the applicant how many siblings she has. She stated that she has nine siblings. Her siblings mainly reside in Medan. Her youngest [sibling], who she remains in contact with, is residing in Bali. They last spoke a few weeks ago. During this call her youngest sister told her that she had a new job as a [Occupation 1]. The Tribunal asked the applicant about [Sibling A], who she referred to in her 2025 statutory declaration.[1] She was asked when they last spoke. She responded that she does not speak to this [sibling] anymore.
[1] Statutory declaration dated 2 May 2025 at [61].
The applicant was asked about her previous travel to Australia. The Tribunal noted that she had been to Australia on two previous occasions. The applicant stated during those periods she worked [in various workplaces]. She had come to Australia with her former partner. The applicant was asked why she had returned to Indonesia in 2018.[2] She stated her youngest [sibling] had moved to Bali and she really missed her. She returned to Bali with her former partner. Once in Bali they went their separate ways. When she arrived at her [sibling’s] house, her mother was there. While in Bali she kept to herself. She still felt fear to be herself. She modified her behaviour by changing the types of her clothes she wore. She put on makeup and clothes that normal women wear such as a skirt and high heels to fit in.
[2] Statutory declaration dated 2 May 2025 at [60].
The applicant explained that she departed Australia and returned to Medan in Indonesia in 2019.[3] She returned to Indonesia with her former partner. She returned to Medan and her former partner returned to Surabaya. Her motivation for returning at that time was to see and speak to her mother. Her mother always pushed her to get married. She used this opportunity to tell her mother that she was lesbian. Her mother rejected her. Her mother told her that she needed to pray and ask for forgiveness. She asked her mother for her household identity document. Her mother said no. No one else was present for this conversation but she believes her siblings know that she is a lesbian because they no longer speak to her. She was asked about her youngest [sibling], whom she remains in contact with. She indicated that she doesn’t know if her youngest [sibling] knows about her sexual orientation. Her youngest [sibling] doesn’t ask about her partner, and she doesn’t tell her anything.
[3] Statutory declaration dated 2 May 2025 at [61].
The applicant confirmed that in 2019, she returned to Australia with her former partner. She explained that her former partner did not want to return to Australia and had asked her not to return. She told her former partner she could not stay in Indonesia any more given what she had experienced from her family and people in the community. She stated that in September 2019, prior to her Work and Holiday (subclass 462) visa expiring, her former partner returned to Indonesia. In November 2019, they ended their relationship. To the best of her memory, she has not had any contact with her former partner since then. She has blocked her number.
The Tribunal discussed with the applicant that prior to her last arrival in Australia in 2019, she has travelled to Australia on two separate occasions. The applicant was asked why she didn’t apply for a protection visa during either of these visits. She responded that she had always planned to apply but she didn’t know that her returns to Indonesia would affect her credibility. During those years, she was also experiencing trauma and was not emotionally ready to apply. She explained that the first time she returned to Indonesia, she needed the emotional support of her younger [sibling]. The second time she returned to Indonesia, she wanted to clear things up with her mother. She stated that despite everything that her mother has done to her, she still loves her and hopes her mother can love her back. She had hoped in 2019 when she returned to Medan that her mother would hug her or say something, but her mother was unable to.
Events in Bali involving Pecalang officers
The applicant confirmed that she met her former partner, in person, for the first time in 2014.[4] At that time she was so scared as her former partner looked so masculine. She didn’t know this about her until they met in person. This made her very scared because people in the community are very suspicious. Since she was a child, she has always modified her behaviour to ensure people didn’t think she was a lesbian. The applicant was asked to describe her former partners appearance. She stated her hair was so short and she wore men’s clothes. She was worried what people were going to think when they were together. She was asked when they started to live together. She indicated immediately. At the beginning everything was good. They mostly stayed at home.
[4] Statutory declaration dated 2 May 2025 at [40]-[42].
The Tribunal asked the applicant to explain what happened when they were living as a couple in the flat in Bali.[5] She stated she remember it was nighttime. A neighbour came to their flat and knocked. She remembers the knocking being very loud. The neighbour told them that their relationship was not aligned with the culture and religion and threatened to report them to the Balinese security (also known as Pecalang officers). She was just crying. She was so scared. The neighbour then left. That night, her former partner decided to return to Surabaya. Her former partner packed all her stuff including her documents. Her former partner said her documents were safer with her. The next day her former partner left.[6]
[5] Statutory declaration dated 2 May 2025 at [43].
[6] Statutory declaration dated 2 May 2025 at [80]-[81].
The applicant explained after her former partner had left, Pecalang officers went to her flat. They told her she had made the neighbourhood uncomfortable and if she continued her relationship with woman, they would kick her out of her flat or even make her leave the area.[7] She didn’t understand if they had power to do that. After they left, she felt so scared. She didn’t go to work and was only thinking about her former partner. After few days, she travelled by bus to Surabaya and met her former partner in Surabaya.[8]
Incident in Surabaya involving former partner
[7] Statutory declaration dated 2 May 2025 at [45].
[8] Statutory declaration dated 2 May 2025 at [49], [81].
Section 367A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence if it was not raised or presented before the primary decision was made, unless the Tribunal is satisfied that the applicant has a reasonable explanation as to why the claim was not raised, or the evidence not presented. In summary, at the Tribunal hearing, it was discussed with the applicant and her representative that the domestic violence claims, had not been raised previously.[9]
[9] Statutory declaration dated 2 May 2025 at [74]-[99].
The applicant responded that she had only recently became aware that what she had experienced was connected to her claims for protection. The representative further explained that it had not been included as part of the new information in the pre-hearing form as RAILS did not have capacity, at that time, to assist the applicant to complete the form. The Tribunal has considered the explanations provided and is satisfied that the applicant has a reasonable explanation as to why the new claims were not raised, and why the new evidence was not presented before the primary decision was made. Aspects of the new claims, which were discussed at the hearing, are set out below.
At the Tribunal hearing, the applicant became visibly upset and distressed when giving evidence about an incident in Surabaya in which she was physically assaulted by her former partner.[10] She explained that one night, a male friend of her former partner came to the home where they were living. She offered this male friend a glass of water. She then left the male friend and her former partner to speak. After the male friend left the house, her former partner became very angry with and accused her of flirting with him. Her former partner then slapped her and bit her finger. She described how painful the bite was. She ran out, barefoot and in pyjamas. She left without any money or a phone. She boarded a small public transport van. She was still crying and holding her finger. The other passengers were looking at her. One of the passengers, felt sorry for her and gave her $2. She stayed on the van until the last stop, which was a bus terminal.
[10] Statutory declaration dated 2 May 2025 at [82]-[83].
The applicant explained that at that point she really wanted to go back to Bali or Medan. She wanted to call her mother and return to the family home. She was so upset but was worried that if she called her mother, her mother would reject and shame her. She had all these feelings and was missing her mother a lot. She wanted to tell someone what had happened, but she had no one. She explained that given that this had been her first relationship, she didn’t know whether what had happened with former partner was normal. Her former partner had told her that she loved her and wanted to protect her. She always believed her words. She wanted to call her mother, but she didn’t. She stayed at the bus terminal until morning. Around 7am, she returned to former partner’s home. Her former partner hugged her and said sorry. She told her that she had been looking for her all night. She also gave her food, fixed her wound and looked after her.
Events at the café in Surabaya
The applicant provided the Tribunal with detailed evidence of her experiences when dining at a café in Surabaya with her former partner. The applicant explained that it was in the afternoon, and they had gone to a park in Surabaya. This was her first visit to this park. There were many people enjoying the park. She explained that after sunset, they went to the café. The café was really packed. They ordered some drinks and sat at a table. While sitting, her former partner held her hand. Her former partner hadn’t done this before in public.
The applicant explained she then heard a man yell from the back of the café, “are you two a lesbian couple”. She was shocked. Everyone in the café turned and looked at them. She felt humiliated and scared. The man came over to them, he was wearing white. Her former partner tried to explain to him that they were sisters. The man then pushed her former partner and because they were still holding hands, they both fell to the ground. People in the café were just watching them, no one was helping. The man then called out to his friends. They got up and ran as fast as they could. She was terrified that at that moment her life would end. She never thought such things like that would happen. It was in that moment, that she thought that she had no future in Indonesia.
The Tribunal asked the applicant if they had reported this event to the police. The applicant responded that they didn’t go to the police. She believed if they went to the police, they would have just shamed them. The police may have also blamed them and made them the suspects. She knew this from watching the news and the treatment of LGBTI people in Indonesia. This incident made her realised she had no future in Indonesia. After this event, she decided to apply for a working holiday visa for Australia. She knew she would only be able to survive in Indonesia if she kept hiding.
The applicant explained that since her arrival in Australia, she has been able to be more open about her sexual orientation. She can tell people she is a lesbian and this is my girlfriend. She has started to feel proud of herself. In Australia, she can live safely and be honest with herself and live with dignity. She never experienced this in Indonesia.
Involvement with LGBTQIA+ community
The Tribunal asked the applicant about the ‘[Wellbeing group 1] certificate’, which had been provided as part of her submissions to the Tribunal. The applicant explained that this group had helped her a lot.[11] The group allows LGBTI people to feel confident and safe in the work environment. She stated at her workplace, she can speak openly about herself and give her opinion. She always wanted to join this group, and the group makes her feel welcome. She doesn’t need to worry about hiding herself and her sexual orientation. Instead, she is valued on what she can bring to the company. She stated that she loves working at [Workplace 1]. She has been working in [a particular] department but more recently has been trained [in a different] department. She has also received an email telling her that she has been voted the best associate of the month. She stated that she would never be able to involve herself in such groups in Indonesia. Until she came to Australia, she didn’t think she was capable. She had very low self-esteem. She didn’t trust or love herself. She believes that her sexual orientation was a problem. She didn’t know that her mental health was so damaged by what she had experienced in Indonesia.
Return to Indonesia
[11] [Information deleted]
At the Tribunal hearing, the applicant was asked what her understanding was of the situation for lesbians in Indonesia now. The applicant responded that if she was forced to go back and was to live openly as a lesbian, she would face threats, discrimination and rejection. These are all things that she has faced in the past. She also she fears she may be put in a mental hospital or sexual abused to correct her and force her to be a normal woman. She explained that in Indonesia they believe that lesbians are the way they are because they have not slept with a man.
The Tribunal asked the applicant if she thought the situation would be different in Bali given the country information reporting that Bali is a safer place for LGBTI people.[12] She responded she had thought the same thing about Bali and that is why she moved there. However, based on her own experiences, it was not safer, and she was treated in the same manner.
CONSIDERATION OF CLAIMS AND EVIDENCE
[12] Australian Government - Department of Foreign Affairs and Trade (DFAT), DFAT 2023 Country Information Report on Indonesia (Report, 24 July 2023).
Criteria for 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.
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.
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), which are extracted in the attachment to this decision.
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 has considered the country information and reports including those before the delegate and those provided by the applicant and her representative. The contemporary and pertinent sources are cited below.
Sexual orientation, gender identity or expression, or sex characteristics in Indonesia
In the Department of Foreign Affairs and Trade’s (DFAT) 2023 Country Information Report on Indonesia,[13] under the heading ‘Sexual Orientation and Gender Identity’, it has been relevantly reported:
[13] Australian Government - Department of Foreign Affairs and Trade (DFAT), DFAT 2023 Country Information Report on Indonesia (Report, 24 July 2023).
3.97 There is no national law against same-sex sexual relations, but it is illegal in Aceh, where ‘offenders’ are caned as a judicial punishment for same-sex acts. Nonetheless, LGBTI people are heavily stigmatised in Indonesia. Terms like ‘LGBT’ are broadly taboo or used as an insult. In-country sources told DFAT it is very difficult to be openly LGBTI in Indonesia. A 2020 Pew Research Centre survey found that public acceptance of homosexuality was only 9 per cent among Indonesians, an increase from 3 per cent in 2013, however still among the lowest of the 34 countries surveyed (by comparison, public acceptance was 81 per cent among Australians).
3.98 Despite not being illegal, LGBTI people are sometimes targeted by police. For example, according to international media, a private ‘gay party’ was raided by police with charges laid against nine people for ‘obscene acts’ under anti-pornography laws in August 2020. Other raids on private homes of suspected LGBTI people were ordered by the mayor of Depok in West Java in January 2020. LGBTI people may face charges in the military, where same-sex sexual activity is illegal. In June 2022, two soldiers were sentenced to eight and nine months’ prison respectively for having male-male sex. LGBTI people have been dismissed from the police force because of their sexual orientation. Because of the threat of arrest or extortion, most LGBTI people avoid police.
3.99 The experience of LGBTI Indonesians depends a lot on their families. Family networks are crucial. Those whose families reject them are at a high risk of poverty, may be forced into sham marriages, or simply be required, on a day-to-day basis, to hide their sexual orientation or gender identity. Given prevailing societal attitudes, many LGBTI people will submit to sham marriages or attempts to ‘cure’ them. LGBTI women are vulnerable to violence and forced marriage.
3.100 LGBTI NGOs or social groups do exist, but they must be cautious to protect their safety. It may be possible for LGBTI people to connect using social media or dating apps like ‘Grindr’ (the most commonly used app), ‘Growlr’, ‘Scruff’ or ‘9Monsters’, but their use is hidden and users commonly use virtual private networks to disguise their access to these platforms.
3.101 Digital means can also be used to harass LGBTI people. DFAT is aware of cases where social media was used to ‘out’ (forcibly expose someone’s sexual orientation or gender identity without their consent) an LGBTI person to facilitate online bullying and harassment. This can lead to the threat of violence including death threats, but DFAT is not aware of acts of violence stemming from online harassment.
3.102 Cultural references to LGBTI matters are sensitive. An online video by a popular podcaster, Deddy Corbuzier, including an interview with a gay couple caused an outcry until Corbuzier took the video down and apologised. According to the New York Times, the Indonesian Film Censorship Board was reviewing the 2022 Disney film, Lightyear, because it had a lesbian character, which breached Indonesian laws that prohibit ‘deviant’ or ‘vulgar’ content.
3.103 Accusations of LGBTI activity, which are probably false, are sometimes used to foment outrage or ‘spice up’ a news story. Widespread outrage and protests occurred when the British Embassy in Jakarta raised a rainbow flag on their own grounds in support of LGBTI people. Indonesia’s Ministry of Foreign Affairs summoned and rebuked the Ambassador of the United Kingdom to Indonesia over the incident. Incidents like these can quickly cause widespread outrage on social media and lead to street protests. Many LGBTI organisations keep a low profile and request that foreign interests (including international NGOs or foreign missions, for example) do not publicly associate with them to prevent backlash.
3.104 An American woman working in Bali who described the island as ‘a safe place for the black and queer community’ was deported after local outrage and authorities accused her of ‘disseminating information disturbing to the public’. The Guardian reported in January 2021 that, while Bali is a safer place for LGBTI people, the experience of visitors and tourists is very different, with LGBTI locals experiencing day-to-day discrimination even while serving LGBTI tourists.
3.105 Multiple sources told DFAT that, while the comments mentioned above were unrealistic and insensitive, the situation for LGBTI people in heavily-touristed Bali is somewhat better than in most other parts of Indonesia because international visitors may be more tolerant or be LGBTI themselves. There is a vibrant nightlife in parts of Bali that is well-frequented by international tourists and this provides some LGBTI Indonesians a space for self-expression, but these spaces are not necessarily inclusive of all LGBTI people.
3.106 Other sources told DFAT that working in international hotels or tourism in other parts of the country (including big cities like Jakarta) may be a safer place for LGBTI people for the same reasons. Even then, LGBTI people in these locations would potentially be subject to violence or discrimination.
…
3.109 While LGBTI people do not report direct discrimination in the provision of healthcare, education and services this is probably because most are forced to hide their sexual orientation or gender identity, and so do not experience discrimination as a result. Some LGBTI people may have difficulty accessing appropriate services; for example, LGBTI-appropriate housing or healthcare may simply be unavailable.
3.110 Parliament passed a revised Criminal Code in December 2022. The Code includes provisions that criminalise cohabitation and adultery, though the law limits who can lodge the complaint to direct family members. Because same-sex marriage is illegal in Indonesia, the law could in effect criminalise same-sex sex. Penalties include a maximum one-year prison term. DFAT understands that the provisions will become law three years after promulgation. As at publication, DFAT is awaiting further clarity on how the law will be interpreted as implementing regulations are finalised.
3.111 DFAT assesses that LGBTI people face a moderate risk of societal discrimination: traditional views about sexuality and gender can restrict participation in the workforce and the broader community. People perceived to be LGBTI may face a risk of violence, particularly if living in religiously conservative areas and communities, including Muslim and Christian communities. LGBTI individuals face a moderate risk of official discrimination due to national laws that discriminate against them based on their sexuality, and due to official attitudes. DFAT assesses that LGBTI people living in Aceh face a high risk of official and societal discrimination and violence.
In April 2024, the US Department of State published its 2023 Country Report on Human Rights Practices for Indonesia,[14] in relation to the acts of violence, criminalisation, and other abuses based on sexual orientation, gender identity or expression, or sex characteristics, it has been relevantly reported that:
[14] US Department of State, 2023 Country Reports on Human Rights Practices (Report, 22 April 2023).
Criminalization: No national law criminalized consensual same-sex sexual conduct between adults; however, NGOs reported several cases where vaguely defined laws related to pornography and facilitation of prostitution were used to prosecute LGBTQI+ individuals. NGOs reported numerous local government regulations defined same-sex sexual conduct as a form of sexual deviance. Such local laws were rarely enforced.
In July Garut Regency became the fifth local government to enact antiLGBTQI+ legislation when Regent Rudy Gunawan signed a law creating a taskforce to prevent and monitor "immorality," including same-sex relationships.
Consensual same-sex sexual conduct was illegal in Aceh and punishable by a maximum of 100 lashes, a considerable fine, or a 100-month prison term. According to Aceh's sharia agency chief, at least four witnesses were required to observe individuals engaging in consensual same-sex sexual conduct for them to be charged. NGOs reported that fear of prosecution under sharia in Aceh at times caused LGBTQI+ activists to flee the province, sometimes permanently.
In July Pekanbaru community police carried out "surveillance raids" of guesthouses, seeking to deter same-sex relationships using their authority to uphold "public order." Local police chief Zulfahmi Adrian acknowledged no LGBTQI+ persons were arrested and said it was difficult to uncover LGBTQI+ cases because there was no local prohibition against men or women sleeping in the same room or living in the same house.
Violence and Harassment: Police corruption, bias, and violence caused LGBTQI+ persons to avoid interaction with police. Officials often ignored formal complaints by victims and affected persons, including refusing to investigate bullying directed at LGBTQI+ individuals. In criminal cases with LGBTQI+ victims, police investigated the cases reasonably well. According to media and NGO reports, local authorities harassed transgender persons, including by forcing them to conform to cultural standards of behavior associated with their biological sex or to pay bribes following detention. In many cases, officials failed to protect LGBTQI+ persons from societal abuse. After local media in Kupang, East Nusa Tenggara, published a story regarding an openly gay pastor, church leaders removed him from his position and allegedly kept him from pastoring in neighboring churches.
Discrimination: National antidiscrimination law did not protect LGBTQI+ individuals, and discrimination against LGBTQI+ persons occurred. Transgender persons faced discrimination in employment and access to public services and health care.
In January Medan Mayor Bobby Nasution characterized same-sex relationships as counter to national culture and proclaimed Medan an "antiLGBT" city in public remarks.
In July a police officer from the Civil Service Police Unit in Dharmasraya, West Sumatra Province, was fired on suspicion of being a lesbian. She was accused of acting immorally after a video of her hugging another woman was widely viewed on social media.
Availability of Legal Gender Recognition: The country recognized "sex" rather than "gender" on official documents. Updating sex markers on legal documents was possible but required completed medical interventions including surgery and attestation by court order. Judges had the discretion to grant a court order. NGOs reported at least one case where the petitioner presented evidence of a medical sex change and the judge denied the request due to his self-described conservative values.
Involuntary or Coercive Medical or Psychological Practices: No law or regulation prohibited or otherwise restricted so-called conversion therapy practices. According to activists, transgender individuals were at times subjected to "therapy" such as exorcism practices, religious camps, and other traumatic practices. Families often put LGBTQI+ children into therapy, confined them to their homes, or pressured them to marry persons of the opposite sex. No known forced medical procedures were performed on children or nonconsenting adult intersex persons.
NGOs criticized a law in the city of Bogar, West Java, aimed at "rehabilitating" those perceived to suffer from abnormal sexual behavior, saying it violated rights and targeted LGBTQI+ individuals and communities…
Reports of the targeting of individuals who identify as lesbian women in Indonesia
The Tribunal has also considered the following reported events, when considering the real chance and/or the real risk of the applicant being mistreated and/or harmed if she was identified as a lesbian should she return to Indonesia:
·In January 2011, the BBC reported that Islamic police in the Indonesia province of Aceh have forced two women to have their marriage annulled and sign an agreement to separate because they were identified as being in a homosexual relationship by neighbours and reported to the police.[15]
·In September 2017, Human Rights Watch reported that police had raided a residential compound in West Java province in response to complaints from local Islamic youth groups and religious leaders that women were cohabiting. The women were forcibly evicted on the basis of their presumed sexual identity.[16]
·In January 2021, it was reported that Indonesia had deported an American lesbian couple, after a social media post call Bali “queer friendly” went viral. One of the young women who was deported stated that she was being deported because of her sexuality, not as Indonesian officials had claimed because of a violation of visa rules.[17]
[15] Alice Budisatrijo, Indonesia Sharia police separate Aceh lesbian couple, BBC News Jakarta (online, 25 August 2011) < Human Rights Watch, Indonesia: Stop Raids on Homes of ‘Suspected Lesbians’, Human Rights Watch (online, 5 September 2017) < Shibu Thomas, American Lesbian Couple Deported After Calling Bali ‘Queer Friendly’, Star Observer (online, 23 January 2021) < Code
The new Indonesian criminal code was passed by the Indonesian parliament on 6 December 2022, and it will fully come into effect three years after the Indonesian President Joko Widodo signs it (this year on 6 December 2025). The new Indonesian Criminal Code does not explicitly criminalise private same-sex sexual acts between adults, however, the code does criminalise sex outside of marriage for heterosexual couples if a family member lodges a complaint. The new code does target adults who commit sexual violence or rape, including those of the same sex.
On 17 December 2022, an article on News.com.au (Australia)[18] reported that although homosexuality is not illegal at the national level, laws and regulations at local levels have hampered the lives of gay people, and the new Criminal Code can be used to punish LGBTI people.
Homosexuality is not illegal at the national level in the mostly Muslim nation which constitutionally is secular. Nonetheless, it is mostly frowned upon and in some regions has been made all but illegal at the local level. Either that, or regulations have been put in place which have hampered the lives of gay people.
Bali is relatively relaxed when it comes to diverse sexualities but, in contrast, in the province of Aceh – where sharia law is in place – homosexuality can be punished.
In 2021, two men received 77 lashes in front of a crowd after neighbours accused them of having sex.
Also last year, a US woman was deported from Indonesia simply because, she claimed, she said in a tweet that Bali was “queer friendly”.
A man is caned for breaking sharia rules in Indonesia’s conservative Aceh province where homosexuality is banned. There are fears new laws could effectively outlaw it everywhere.
[18] Benedick Brook, Forgotten victims of Indonesia’s new sex outside marriage ban, News.com.au (online, 17 December 2022) < >
On 12 January 2023, Human Rights Watch, in its World Report 2023,[19] assessed that the proposed Indonesian Criminal Code will likely take its substance from what is deemed ‘living laws’ which may be interpreted as customary criminal law and Sharia (Islamic law) regulations at the local level. These laws would discriminate against LGBT people and open the door to widespread rights abuses through possible prosecutions under these discriminatory local regulations. This report further stated that:
Officials continued to target lesbian, gay, bisexual, and transgender (LGBT) people. For example, on August 1, the Makassar police forced the cancellation of a gathering of more than 30 transgender women. Police in Sambas, West Kalimantan, disbanded a transgender fashion week gathering on September 7. Abdul Muthalib, the Sambas police chief, said that it had a request to close the fashion show from the Indonesian Ulama Council.
Rodrigo Ventocilla Ventosilla, a transgender man from Peru who travelled to Bali as a tourist, died on August 11 while in police custody after he was allegedly mistreated and discriminated against by police.
Indonesia has also increasingly used other laws to target and prosecute LGBT people, including the 2008 Anti-Pornography law.
In September, a Jakarta military tribunal dismissed two sergeants and a sailor for same-sex conduct. One of them was sentenced to six months in jail for having sex with two other male civilians.
[19] Human Rights Watch, World Report 2023 – Events of 2022 (Report, 2023)
REASONS AND FINDINGS
The issue in this case is whether the applicant meets the criteria for the grant of a protection visa. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Country of reference (and receiving country)
The applicant provided the Tribunal with a copy of the biographical/biodata page of her Republic of Indonesia passport. The Tribunal is satisfied that the applicant is a citizen of Indonesia.
The Tribunal acknowledges that the applicant has in the past travelled to other countries in addition to Australia. However, there is no evidence before the Tribunal to suggest that the applicant has citizenship of any other country, or that she has a right to enter and/or reside in any third country. Based on the information before it, The Tribunal is satisfied that s36(3) does not apply.
The Tribunal finds that the receiving country is Indonesia; and on this basis the applicant’s claims have been assessed against Indonesia.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal found the witness to be a credible and honest witness at the Tribunal hearing. The applicant’s oral evidence was detailed, convincing and presented in a manner indicative of genuine lived experiences. The Tribunal accepts the applicant’s evidence set out above and in her statutory declarations. Like the delegate, the Tribunal accepts that the applicant identifies as a lesbian woman. The Tribunal accepts the applicant is a woman who is attracted to other women and is presently in a same-sex relationship.
The Tribunal has had regard to s 5J(6), which states that conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the decision maker that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee. Arising from the evidence presented, the Tribunal is satisfied that the applicant’s sexual orientation existed prior to her arrival; and that since her arrival in Australia, she has continued to identify as a lesbian women including commencing a new relationship with [Partner A] and has joined “[Wellbeing group 1]”, [Workplace 1’s] LGBTQIA+ employee affinity group. The Tribunal has considered the applicant’s evidence and is satisfied that her conduct in Australia in openly expressing her sexual orientation through her relationships and her involvement in an LGBTQIA+ group have been undertaken otherwise than for the purpose of strengthening her claims for protection. The Tribunal, therefore, is not required to disregard this conduct in assessing whether the applicant has a well-founded fear of persecution.
The Tribunal accepts that in the past in Indonesia, as a lesbian woman, the applicant has been shunned, threatened and rejected by her family members. She has been bullied, threatened and verbally abused by friends at university and threatened, ridiculed and humiliated by Pecalang officers. She has also been harassed and verbally and physically assaulted by members of the public. The applicant has claimed that on account of her sexual orientation and expression she fears she will be harmed by her family members, members of the public and the law enforcements agencies such as the police and Pecalang officers should she return to Indonesia. She fears she will be shunned, bullied, rejected, harassed, verbally and physically assaulted and discriminated against by these individuals and groups. She will also be unable to live openly as a lesbian woman because she fears she will be arrested or imprisoned or place into a mental hospital or be forced to marry and/or have sexual relations with a man to “correct” her.
To establish if there is a well-founded fear of persecution, s 5J(1)(b) requires a finding as to whether there is a real chance that the person would be persecuted if returned to the receiving country, now or in the reasonably foreseeable future. To establish that there is a well-founded fear of persecution there must be a real chance of it occurring. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though there is only a 10 per cent chance that they will be persecuted.[20]
[20] Chan Yee Kin v MIEA [189] HCA 62.
In this case, like the delegate, the Tribunal has accepted that the applicant identifies as a lesbian woman, and is satisfied, that she will continue to do so on return to Indonesia.
In summary, the contemporary country information above reports that LGBTI people are at heightened risk of stigmatisation, discrimination, harassment and violence from family, society and the State authorities in Indonesia. They are also often stereotyped and marginalised, leading to rejection by families and communities. It has also been reported that family rejection leads to a higher risk of poverty, shamed marriages, or simply a requirement on a day-to-day basis, to hide their sexual orientation or gender identity. The combination of family rejection, societal stigma and legal discrimination creates a hostile environment for LGBTI people. This isolation increases their vulnerability to poverty and limits their access to health care, education, appropriate housing and services.
Having considered the country information, and the applicant’s past experiences in Indonesia, the Tribunal finds that if the applicant was to return to Indonesia and continue to openly engage in same-sex relationships, as she has in Australia, the possibility of the applicant’s sexual orientation, and expression becoming known to individuals within her community and/or the law enforcement agencies in Indonesia; and the possibility of her being harmed on this basis not a remote, insubstantial, or far-fetched chance. Accordingly, the Tribunal is satisfied that there is a real chance of the applicant facing serious harm, on account of her profile as a lesbian woman on return to Indonesia, now or in the reasonably foreseeable future.
Section 5J(4)(b) requires a consideration as to whether the persecution involves serious harm. As set out above, the DFAT has assessed that LGBTI people face a moderate risk of societal discrimination: traditional views about sexuality and gender can restrict participation in the workforce and the broader community. People perceived to be LGBTI may face a risk of violence, particularly if living in religiously conservative areas and communities, including Muslim and Christian communities. The US Department of State has also reported that LGBTQI+ persons avoid interactions given that officials often ignored formal complaints by victims and affected persons, including refusing to investigate bullying directed at LGBTQI+ individuals. In many cases, officials failed to protect LGBTQI+ persons from societal abuse. Moreover, as set out above, there are reports of law enforcement agencies in Indonesia, acting on complaints from the community and arresting, imprisoning and/or deporting individuals who identify as lesbian women.
Given the applicant’s profile and the country information above, the Tribunal finds the applicant faces a real chance of stigmatisation, discrimination, harassment and violence should she return to Indonesia. Moreover, the Tribunal has also considered the country information above, regarding the new Indonesia Criminal Code, which is due to come into effect later this year and finds that this further heightens the chance of such harm occurring. In contrast to the delegate’s finding, the Tribunal is satisfied that when considered cumulatively, the harm the applicant would face on return amounts to serious harm of the kind contemplated by s 5J(5).
Having regard to s 5L, the Tribunal finds that lesbian women constitute a particular social group and is satisfied that the essential and significant reason for the serious harm being directed at the applicant from her family members, members of the public and the State authorities is her membership of this group. Furthermore, on the country information above, the Tribunal is satisfied that the persecution involves systematic and discriminatory conduct (s 5J(4)(a) and (c)).
To the extent that the applicant faces harm from her family and members of the public, country information indicates that in general, the State is able but is not willing to offer effective protection. As noted above, it has been reported that State authorities have been responsible for harassment, discrimination, and violence, towards LGBTI persons with reports of physical and sexual assaults by police. Accordingly, the Tribunal finds that effective protection measures are not available to the applicant on return (s 5J(2) and s 5LA) and the real chance of persecution relates to all areas of Indonesia (s 5J(1)(c)).
Finally, s 5J(3) requires a consideration of what reasonable steps a person could take to modify their behaviour to avoid the real chance of persecution. In this case, the Tribunal is satisfied that it would not be reasonable for the applicant to take steps to modify her behaviour, as to do so would require them to alter or conceal her sexual orientation. Moreover, it would be impermissible to require the applicant to take such steps under s 5J(3)(a), (b) or (c)(vi).
For the reasons given above, the Tribunal finds that the applicant has a well-founded fear of persecution should she return to Indonesia, now or in the reasonably foreseeable future.
Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date(s) of hearing: 9 May 2025
Representative for the Applicant: Ms Simone Cameron
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.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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