2317524 (Refugee) - [2025] ARTA 1425

2317524 (REFUGEE) [2025] ARTA 1425 (26 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2317524
Tribunal:General Member R Burke
Date:26 May 2025

Place:Adelaide
Decision:The Tribunal affirms the decisions under review

General Member R Burke
Decision made on 26 May 2025 at 12pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – fear of harm from cousin – borrowed money for living expenses and unable to repay – costs of application for judicial review of refusal of second applicant’s student visa – written loan agreement – fear of legal action and consequences, or retribution from cousin – negotiations and part-repayment by parents – no threats by cousin – personal, not statutory debt – repayment, legal costs and associated stress not significant harm – member of family unit wife and children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
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 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (Act).
The applicants, who claim to be nationals of Indonesia, applied for protection visas on 18 November 2021.
On 27 October 2023 the delegate issued a decision refusing to grant the visas on the basis that the applicants did not fall within the statutory refugee or complementary protection criteria.
The applicants applied for a review of the delegate’s decision on 31 October 2023.
The applicants appeared before the Tribunal on 27 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
The evidence before me for the purpose of this application is as follows:
a.Departmental file.
b.Application for review.
c.Documents filed prior to the hearing.
d.Oral evidence provided at the hearing by [the first and second applicants].
e.Movement records.
f.Country information as cited.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in section 36 of the Act, and Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). An applicant for the visa must meet one of the alternative criteria in section 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 (section 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 (section 5H(1)(b)).
Under section 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 sections 5J(2) to (6) and sections 5K to LA, which are extracted in the attachment to this decision.
If a non-citizen in Australia is found not to meet the refugee criterion in section 36(2)(a), they may nevertheless meet the complementary protection criteria for the grant of a protection visa if, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk they will suffer significant harm (section 36(2)(aa)). 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 sections 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under section 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Immigration and Multicultural 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.
REASONS AND FINDINGS
For the following reasons, I have concluded that the decision under review should be affirmed.
I am satisfied that the applicants’ identities are as stated and that the receiving country for the purpose of this application is Indonesia and find accordingly.
I have proceeded with this matter on the basis that [the first applicant husband/father] is the primary applicant, and that [the second applicant wife/mother and third to sixth applicants children] are claiming protection based on being members of [the first applicant]’s family unit.
I am satisfied that [the second applicant] is [the first applicant]’s legal spouse, and that [the first and second applicants] are the legal custodial parents of the children.
The Claim
By way of summary, the claim is as follows:
a.In 2017, while in Australia, [the first applicant] borrowed money from his cousin to cover his family’s living expenses.
b.[The first applicant] had previously borrowed money from his cousin and had repaid those prior loans in full.
c.[The first applicant] has not been able to comply with the repayment terms agreed to with his cousin.
d.Under the terms of the agreement the cousin is entitled to take [the first applicant] to court if he were to return to Indonesia without having repaid the loan.
e.[The first applicant] is fearful of such court action. He is also fearful of the possibility of going to jail, and/or of the cousin hiring someone to hurt him if he returns to Indonesia without having repaid the loan in full.
Background
[The first and second applicants] were married in [Year]. [The first applicant]’s latest arrival in Australia was in July 2017. [The second applicant]’s latest arrival (with their eldest child) was in November 2011.
At the time of the hearing [the first and second applicants] were both [Age] years old and had four children aged from [Age] to [Age] years old. [The second applicant] was expecting a fifth child in [Month].
From October 2013 to July 2017, [the first applicant] had a total of six arrivals in Australia. He commenced and withdrew from a number of courses of study in Australia before starting work as [an occupation] in 2018.
From June 2015 to November 2017 [the second applicant] arrived in Australia on three occasions. She was to commence a course of study in Australia in early 2018 but was refused a student visa. An application for review of that decision was made to the Administrative Appeals Tribunal and was dismissed in March 2020. An appeal to the Federal Court was dismissed in November 2020.
Evidence and Findings
Prior to the hearing [the first applicant] provided a number of documents to the Tribunal. The majority of the documents relate to [the second applicant]’s student visa refusal and the subsequent appeal proceedings. I find that those documents are not relevant to the question of whether the applicants meet the criteria for protection visas.
One of the documents provided prior to hearing is relevant to the matter at hand as it is a copy of a loan agreement between [the first applicant] and [Mr A] (who [the first applicant] has confirmed as being his cousin). The copy loan agreement is in Indonesian and English. The English version provides as follows:
a.The agreement is dated 12 September 2017.
b.The amount of the loan is IDR 445,000,000 (AUD 42,000).
c.Interest is set at 2% per month and is payable on the 10^th day of each month.
d.Any disputes are to be resolved through “amicable negotiation”. If that fails, the dispute is to be resolved via court action.
The English version document does not refer to a date by which the loan is due to be paid. I understand from [the first applicant]’s oral evidence that he has defaulted on the agreement by failing to comply with the agreed interest payment terms. [The first applicant] stated that he has repaid about AUD 19,000 but has been unable to continue to make the required payments because of the cost of [the second applicant]’s proceedings, their increasing living expenses, and his limited ability to earn money.
I accept that [the first applicant] has entered into a loan agreement with his cousin, [Mr A], and that he has defaulted on that agreement. I also accept that as a result of that default, [Mr A] can and might take civil action against [the first applicant] if he were to return to Indonesia. I find accordingly.
I do not accept that that [Mr A] will take retribution against [the first applicant] of a criminal natures if he were to return to Indonesia in the near or foreseeable future without having repaid the loan.
[The first applicant] gave evidence that, although there has been some tension in the family over the default by [the first applicant], [the first applicant]’s parents have engaged in negotiations with [Mr A] to repay some of the loan by agreeing to [Mr A] take possession of a car and motorbike. It was not made very clear by [the first applicant] whether he was the owner of both or one of those vehicles but I consider [Mr A]’s acceptance of them by way of part-payment to indicate his willingness to negotiate a resolution of the loan default.
This is also borne out by the clause in the loan agreement which states that the parties are to negotiate a resolution before taking any legal action for default of the loan, the fact that [Mr A] has not threatened [the first applicant] or his gamily with any retribution of a criminal nature, and evidence by [the first applicant] indicating that his family is on good terms with [Mr A] and his family.
[The first applicant] professes to be afraid that if [Mr A] were to take him to court, [the first applicant] would be put into jail because he is in the wrong. I consider this possibility to be far-fetched. The loan agreement states that if default negotiations fail, civil action can be taken in the local court. Such civil action might result in orders being made against [the first applicant] with respect to repayment of the loan, but imprisonment would not be within contemplation as the action relates to a personal, rather than a statutory, debt.
Does the applicant satisfy the refugee criterion for protection?
In order for [the first applicant] to fall within the refugee protection criterion, I must be satisfied that there is a real chance of him being persecuted in the near or foreseeable future if he were to return to Indonesia
The Act does not define or provide guidance as to what constitutes a ‘real chance’ however, the case law has established that the concept of real chance is synonymous with terms such as ‘reasonable degree of likelihood’, a ‘real and substantial risk’ and a ‘reasonable possibility’ and is meant to convey the notion of a substantial chance, as distinct from a remote or far-fetched chance, of harm.
For the reasons provided above I am satisfied that the chance of harm to the applicant as a consequence of [Mr A] engaging in any criminal retribution (such as physical harm or property damage), or of [the first applicant] being imprisoned, is remote or far-fetched and does not satisfy the requirement for a real chance of harm as required by the Act.
Furthermore, I am not satisfied that any harm feared by [the first applicant] as a consequence of [Mr A] taking legal action for default would constitute persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, or that it would involve systematic and discriminatory conduct.
If [Mr A] did take civil action as provided for in the loan agreement, he would simply be exercising a legal right to recover money that is owed to him by [the first applicant]. He would not be taking such action because of [the first applicant]’s race, religion, political beliefs, nationality or membership of a particular social group, and the action would not involve systematic or discriminatory conduct. The action is the exercise of a valid legal right that would be exercisable against any person in the circumstances.
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) and find accordingly.
Does the applicant satisfy the complementary protection criterion for protection?
The criterion in section 36(2)(aa) requires satisfaction that an applicant engages Australia’s protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal, there is a real risk that they will suffer significant harm.
In Minister for Immigration and Citizenship v SZQRB, Lander and Gordon JJ held that the real risk test for the purpose of section 36(2)(aa) is the same as the real chance test in section 36(2)(a).
Having determined that there is no real chance of the applicant suffering any harm as a consequence of unlawful retribution by [Mr A], I also find that there is no real risk of any harm to [the first applicant] as a result of such action.
While it is true that [the first applicant] might experience harm if [Mr A] were to exercise his legal rights under the loan agreement, I am not satisfied that it falls within the definition of significant harm provided for in the Act.
s36(2A) of the Act provides that a non-citizen will suffer ‘significant harm’ if:
a.They will be arbitrarily deprived of their life; or
b.The death penalty will be carried out on them; or
c.They will be subjected to torture; or
d.They will be subjected to cruel or inhuman treatment or punishment; or
e.They will be subjected to degrading treatment or punishment.
The consequences for [the first applicant] if [Mr A] were to exercise his legal right of action under the loan agreement would consist of having to repay money to [Mr A], incurring legal costs and experiencing the sort of stress that would ne natural in such circumstances. None of these consequences involves the kinds of harm falling within the definition of significant harm.
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) and find accordingly.
Membership of family unit
Having found that [the first applicant] is not a person in respect of whom Australia has protection obligations under sections 36(2)(a) and 36(2)(aa), I find that [the second applicant] and the children do not satisfy section 36(2) on the basis of being a member of the same family unit as a person who satisfies section 36(2)(a) or (aa) and who holds a protection visa. Accordingly, those applicants do not satisfy the criterion in section 36(2).
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
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.
…