1826735 (Refugee) [2024] AATA 2088 (14 February 2024)

Last Updated: 27 June 2024

1826735 (Refugee) [2024] AATA 2088 (14 February 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1826735

COUNTRY OF REFERENCE: Republic of Indonesia

MEMBER: David James

DATE: 14 February 2024

PLACE OF DECISION: Brisbane

DECISION: The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 February 2024 at 3:06pm

CATCHWORDS
REFUGEE – protection visa – Republic of Indonesia – no response to tribunal communication – threatened by men at café – men overheard applicant’s comment on noise – vague claims lacking in details – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 411(1)(c), 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZRQA v MIBP [2013] FCA 962

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a citizen of the Republic of Indonesia (Indonesia), applied for the visa on 15 July 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
3. The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 12 September 2018. The applicant provided a copy of the delegate’s decision with their application for review.
4. As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
5. The applicant was not represented in relation to the review.

CRITERIA FOR A PROTECTION VISA

6. 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.
7. 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.
8. 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).
9. 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.
10. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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 when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
11. 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.
12. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505.

Mandatory considerations

13. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

Issues

14. The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Indonesia they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.

Documentary evidence before the Tribunal

15. The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:
    • Applicant’s protection visa application lodged on 15 July 2018 and the annexed copy of the applicant’s Indonesian passport’s bio data page and Indonesian Identity Card;
    • Applicant’s application for review of 12 September 2018, and the annexed decision record of 11 September 2018;
    • Applicant’s ‘Pre-hearing information form’ forwarded to the Tribunal by email on 8 October 2023, in which he states as to his ‘Claims for protection’ that:

I desperately need this protection because I feel no safer to live in my hometown. I will attach an evidence that relay to my application.

and;

• The administrative and movement records of the Department relating to the applicant.

Claims for protection

16. The applicant, in his protection visa application, made the following claims (as summarised) that:
    • On 3 May 2018, the applicant was drinking in a café in Lombok and a nearby group of men were drinking heavily and making a lot of noise. The applicant made some comments about the men making a lot of noise and that their behaviour was disturbing other people in the café;
    • One of the men overheard the applicant’s comments and together with his friends confronted the applicant indicating they were going to beat the applicant. The applicant then left the café and ran away;
    • The next day, a friend warned the applicant that the men from the café were looking for him and wanted to kill him. On hearing this, the applicant became scared and feared for his life, so he boarded a flight to Australia [in] May 2018;
    • The applicant fears returning to Lombok as he believes he will be killed by these men if he returns to Lombok;
    • The applicant did not seek help or report this incident to the police as he was afraid and wanted to quickly escape. He does not believe the police can protect him all the time; and
    • The applicant did not move to another part of the country because relocating would take a lot of preparation and he did not have enough time.

Department interview

17. The applicant was not offered an interview by the Department.

Delegate’s decision

18. The delegate’s decision of 11 September 2018 to refuse the protection visa was made on the information before the delegate. The delegate was not satisfied that the applicant’s fears of persecution were for any of the reasons provided in s 5J(1)(a) of the Act. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate also found with reference to the relevant DFAT country information that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer harm ‘significant harm’ as outlined in s 36(2B)(b) of the act. Therefore, the delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
19. On 5 October 2023, the Tribunal wrote to the applicant indicating to him, that his file was being prepared to be given to a Tribunal Member. This correspondence also requested the applicant complete and return to the Tribunal a ‘Pre-hearing information form’.
20. On 8 October, the applicant responded to the Tribunal by email, attaching his completed ‘Pre-hearing information form’, the contents of which is outlined above, at paragraph 16.

Invitation to attend a hearing

21. On 11 January 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 14 February 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
22. On 5 February 2024, the Tribunal wrote to the applicant and informed him, that the Presiding Senior Member was no longer able to conduct his hearing at 9:30 am on the scheduled hearing date (14 February 2024). The applicant was advised that his review hearing at the Brisbane Registry on the same date, 14 February 2024, would now commence at 1:30pm.
23. On 7 February 2024, the Tribunal sent a SMS Hearing Reminder to the applicant’s mobile telephone [number](the mobile number which the applicant had provided on his application for review form). The message read:

Reminder – Your AAT hearing is on 14/02/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.

That same day, the Tribunal was informed that the ‘delivery of SMS hearing reminder failed’.

24. On 13 February 2024, a further SMS Reminder was forwarded by the Tribunal to the applicant’s mobile number, which read:

Reminder – Your AAT hearing is on 14/02/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.

That same day, the Tribunal was informed that the ‘delivery of SMS hearing reminder failed’.

Review hearing - 14 February 2022

25. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
26. Equally, the Tribunal notes that the applicant did not appear at the former scheduled time on the same scheduled day and at the same place of his scheduled hearing.
27. On the afternoon of the scheduled hearing, 14 February 2024, the Tribunal telephoned the applicant’s mobile [number] at 1:30 pm, 1:46 pm, and 2:05 pm. On all occasions the applicant did not answer his phone and instead an automated message stated that, the phone has ‘incoming call restrictions in place’.
28. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with the invitation sent via email to their nominated email address. Additionally, the Tribunal attempted to contact the applicant on the afternoon of the hearing by telephoning his mobile telephone number on three separate occasions, as has been outlined above at paragraph 28. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

Country information

29. The Tribunal has taken into account the DFAT Country Information Report Indonesia, 24 July 2023, as relevant, including the information under the heading of ‘Security Situation’ at 2.33 and 2.34, it is reported at 2.34 that:

While crime remains a persistent threat, Indonesia is generally safe. Some parts of Jakarta, Surabaya and Makassar, for example, experience street crime. Both poverty and related crime rose during the COVID-19 pandemic. Some have connections with gangs in other parts of the world, for example with motorcycle gangs in Australia.
Under the heading of ‘Police’ at 5.1 to 5.4, it is reported at 5.1, that:

Indonesia’s national police force is the Indonesian National Police (INP). Day-to-day experiences with police differ. Some police officers are better educated or better trained than others. Depending on their levels of wealth, education or personal networks, some people fear police because of fear of unwarranted arrest or violence, or because of the force’s reputation for corruption.
And under the heading of ‘Judiciary’ at 5.5 to 5.9, it is reported at 5.5 and 5.6, that:

Indonesia has a complex justice system evolved from three inherited sources of law: Dutch colonial law, sharia, and customary law. Article 24 of the constitution guarantees judicial independence. The judiciary is significantly more independent than it was during the New Order period, however corruption and outside influence, including from business and government interests, weaken judicial independence. There are reported instances where corruption, especially the payment of bribes to court staff for administrative processes or to judicial officers directly, has changed the outcomes of cases.

The Supreme Court and Constitutional Court are Indonesia’s highest courts. Indonesia has general, military, religious and state administrative courts (that decide on matters of administrative law) and special courts that deal in industrial relations, commercial disputes, youth and human rights. The Supreme Court can hear appeals from lower courts, and the Constitutional Court can review the constitution, settle disputes among government bodies and settle election disputes.

30. The Tribunal has also taken into account the earlier DFAT Country Information Report Indonesia, 25 January 2019 as relevant, including the information under the heading of ‘Police’ at 5.6 to 5.11, it is reported at 5.6 to 5.8 that:

The Indonesian National Police (INP) has more than 400,000 police officers and civilian employees (including 13,000 women), deployed to 32 regional police forces across the archipelago. The INP was formally separated from the military in 2000. The Law Concerning the State Police of the Republic of Indonesia (2002) gives the INP the lead role in handling non-defence related security matters. The president appoints the national police chief, subject to confirmation by parliament.

Many religious and ethnic minorities serve in the police. Chinese Indonesians and Christians, particularly Catholics, serve in both the national police and the military. Human rights organisations have criticised the INP for including virginity testing and assessments of physical beauty in recruiting female police.

A semi-independent government advisory body (KOMPOLNAS) maintains oversight of the INP and acts as an alternative advisor to the president on policing matters. KOMPOLNAS has limited investigative powers and can recommend (but not order) follow-up actions.

Country of reference

31. According to their protection visa application, the applicant claims to be a citizen of Indonesia and provided a copy of the bio data page of his Indonesian passport and his Indonesian identity card. Based on this material, the Tribunal finds that the applicant is who he says he is and is, a national of Indonesia. Indonesia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

Analysis

32. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
33. The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.^[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.^[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.^[3]
34. The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
35. The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.^[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,^[5] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
36. In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.^[6] A similar approach is taken in the Department’s Refugee Law Guidelines^[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),^[8] which both provide useful guidance for this Tribunal.

Refugee claims - fears of harm arising from applicant’s confrontation with a group of men at a café in Lombok

37. The applicant claims to fear harm from a group of men who overheard him commenting adversely about their behaviour at a café in Lombok. He claims that these men were going to beat him, but he ran away. He further claims, that on the following day, these men went looking for him and were making threats to kill him. He fears returning to Lombok as he believes he will be killed by these men. He did not seek help or report this incident to the police as he wanted to escape quickly to Australia. He does not believe that the police can protect him all of the time and did not relocate within Indonesia as he did not have enough time to do so.
38. The applicant’s claims are vague and lack any detailed description of the facts relied upon by the applicant.
39. The Tribunal notes, that notwithstanding having received a negative finding by the delegate, the applicant chose not to attend a hearing where he could have given evidence and made arguments. In that regard, the Tribunal notes that if the applicant had attended his scheduled hearing, the Tribunal would have been able to ask the applicant questions and have given the applicant an opportunity to provide further detail as to the facts of his matter.
40. On the evidence before it, the Tribunal finds that the applicant has not claimed to fear harm in Indonesia for any of the reasons outlined in s 5J(1)(a) of the Act. The Tribunal further finds on the evidence before it, that there is no information and/or evidence before the Tribunal to satisfy the Tribunal that the applicant would be targeted for harm upon any future return to Indonesia on the basis of any of the reasons outlined in s 5J(1)(a) of the Act.
41. Therefore, the Tribunal finds on the evidence before it, and for the reason outlined above, that the applicant does not a face a real chance of persecution involving serious harm if he was to return to Indonesia in the reasonably foreseeable future on the basis of any of the reasons outlined in s 5J(1)(a) of the Act.
42. The Tribunal finds that the applicant’s fears in this regard are not well founded.

Complementary protection

43. As noted above, at paragraph 38, the applicant fears being killed by a group of men who had confronted him in café because of adverse comments he made about their behaviour at the café.
44. With reference to the DFAT country information, as outlined above at paragraphs 29 and 30, the Tribunal finds that there is no information and/or evidence before the Tribunal to suggest that the applicant would not be able to obtain protection from an authority in Indonesia given the laws and the government agencies available to him, including the police and the judiciary. The Tribunal is not satisfied that the applicant would have such protections withheld from him for any reason.
45. As such, the Tribunal finds that the applicant would not be at risk of suffering ‘significant harm’ on account of his altercation with the men at the café in Lombok given that, he could if he so sought, seek and obtain the protection of the police and judiciary in Indonesia.

Delay

46. Finally, the Tribunal notes that the applicant arrived in Australia [in] May 2018 in circumstances of him having travelled to Australia, to escape harm from these men from the café in Lombok and fearing that they would kill him. However, notwithstanding these fears of harm, the applicant did not make his application for the protection visa until two months and two weeks later, almost three months, on 15 July 2018. The Tribunal finds that this delay is inconsistent with the applicant’s claims of harm being genuine.
47. In that regard, the Tribunal has considered Anadaraj Subramaniam v MIMA (1998) VG310 of 1997, where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and, SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution, he would not have delayed applying for a protection visa.

Refugee criterion

48. Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and, having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, that the applicant is not a refugee within the definition of s 5H of the Act.
49. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

Complementary protection

50. Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
51. As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
52. The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

Additional findings

53. Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
54. As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act, as to whether the applicant has a right to enter and reside in a country other than Indonesia.

DECISION

55. The Tribunal affirms the decision not to grant the applicant a protection visa.

David James
Senior Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

...

cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

...

5H Meaning of refugee

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.

...

5J Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b) conceal an innate or immutable characteristic of the person; or

(c) without limiting paragraph (a) or (b), require the person to do any of the following:

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b) the persecution must involve serious harm to the person; and

(c) the persecution must involve systematic and discriminatory conduct.

(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person’s life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill‑treatment of the person;

(d) significant economic hardship that threatens the person’s capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b) disregard any fear of persecution, or any persecution, that:

(i) the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a) a characteristic is shared by each member of the group; and

(b) the person shares, or is perceived as sharing, the characteristic; and

(c) any of the following apply:

(i) the characteristic is an innate or immutable characteristic;

(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii) the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a) protection against persecution could be provided to the person by:

(i) the relevant State; or

(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a) the person can access the protection; and

(b) the protection is durable; and

(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

...

36 Protection visas – criteria provided for by this Act

...

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

(2A) A non‑citizen will suffer significant harm if:

(a) the non‑citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non‑citizen; or

(c) the non‑citizen will be subjected to torture; or

(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non‑citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

...

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^[1] Section 5AAA of the Act.
^[2] Ibid (with effect from 14 April 2015).
^[3] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187].
^[4] Fox v Percy (2003) 214 CLR 118

^[5] For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510, Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
^[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
^[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
^[8] UNHCR, re-issued February 2019 at [203]–[204].