1608267 (Refugee)

1608267 (Refugee) [2017] AATA 1641 (1 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608267
COUNTRY OF REFERENCE:                  Taiwan
MEMBER:David McCulloch
DATE:1 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 01 September 2017 at 11:43am

CATCHWORDS
Refugee – Protection visa – Taiwan – Political opinion – Antigovernment posts on social media – Wife and father from mainland China – Economic situation – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(1), 5(H), 5(J), 5K-LA, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2, r 1.12
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] May 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Taiwan applied for the visas [in] May 2015.
The applicants appeared before the Tribunal on 25 August 2017. The hearing was conducted with the assistance of an interpreter in the Mandarin language.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 themself 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.
Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse.
The Tribunal is satisfied, for the purpose of this decision, that the second named applicant (‘the applicant wife’) is the spouse of the first named applicant (‘the applicant husband’) and is therefore a member of the same family unit of the applicant husband.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant husband and the applicant wife and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and initial claims
The decision of the delegate, a copy of which has been provided by the applicants to the Tribunal, indicates the following in relation to the applicants’ migration history. ‘Applicant 1’ is a reference to the applicant husband and ‘applicant 2’ is a reference to the applicant wife:
[date]/02/2012 Applicant 2 first arrived in Australia as the holder of a [Temporary visa 1] valid until [date]/01/2013
[date]/02/2012 Applicant 2 departed Australia
[date]/11/2013 Applicant 1 and applicant 2 arrived in Australia as the holders of a [Temporary visa 1] valid until [date]/01/2014
[date]/01/2014 Applicant 1 and applicant 2 were each granted a [Temporary visa 2] valid until [date]/03/2015
[date]/02/2015 Applicant 1 and applicant 2 departed Australia and returned to Taiwan
[date]/02/2015 Applicant 1 and applicant 2 were married
[date]/04/2015 Applicant 1 and applicant 2 were each granted a [Temporary visa 1]
[date]/05/2015 Applicant 1 and applicant 2 last arrived in Australia as the holders of a [Temporary visa 1] valid until [date]/08/2015
[date]/05/2015 Applicant 1 lodged a subclass XA 866 (Permanent Protection) visa application, including applicant 2 as his dependant
[date]/05/2015 Applicant 1 and applicant 2 were each granted a subclass WA 010 (Bridging) visa A (BVA) which came into effect on [date]/08/2015
The application forms for the Protection visa indicate the following in relation to the applicant husband. The applicant husband was born on [date] in Taiwan. The applicant husband is of the Buddhist religion. He was married [in] February 2015. The relationship with his wife commenced in 2009. The applicant husband lists one address lived at in Taiwan from January 1985 until November 2013. From March 2015 until May 2015, when the applicant returned to Taiwan, he lived at the same address. The applicant lists attending high school from [year] until [year] in Taipei and provides details of no other education. The only details the applicant husband has provided of his employment history is ‘self-employed’.
In the application form as to the reasons for claiming protection the applicant husband indicates that he left Taiwan for political reasons. He indicates that he does not like political policy in Taiwan. The applicant husband indicates that he will be beaten by militants. He indicates he has never experienced harm in Taiwan.
The application forms for the Protection visa indicate the following in relation to the applicant wife. The applicant wife was born on [date] in Fukien, Fujian, China. She acquired Taiwanese citizenship in 1995. The applicant wife lists no religion. The applicant wife was married [in] February 2015. From 1985 until 1995 the applicant wife lived in Fukien. From 1995 until March 2015 the applicant wife lists an address in Taipei, being the same address lived at by the applicant husband. The applicant wife indicates that she withdrew from primary school but provides no other details or dates of education. The applicant wife provides no details of employment. The applicant wife indicates that she is not making her own claims for protection.
Delegate interview
In the interview with the delegate the applicant husband indicates that he is claiming protection because the other party is in power and he does not want to be repressed. He indicates that there is a sense of insecurity under the current government. When asked, the applicant husband indicated that nothing had ever happened to him. The applicant husband then indicated that he fears that he will be discriminated against on the basis of having a wife from mainland China. When asked if the applicant husband had a fear that anything would happen to him he said he did not have such a fear right now. When asked, then, why he had applied for the Protection visa the applicant wife said that they were unsatisfied with the political environment as [occupation] and wanted a more stable environment in Australia.
The delegate asked why a Protection visa had not been applied for at an earlier point in time. The applicants arrived on [Temporary visa 1] and then applied for a [Temporary visa 2] in January 2014 and returned to Taiwan. The applicant husband responded that life in Taiwan was not so bad. When asked why the application was lodged when it was, the applicant husband said that the President had changed and life had become more difficult.
It was confirmed that claims were not being made on behalf of the applicant wife although there was an indication that she faced discrimination on the basis of being from mainland China.
INDEPENDENT INFORMATION
Political environment
US Department of State, Taiwan – Country Report on Human Rights Practices 2015 provided:
Elections and Political Participation
Recent Elections: Presidential and legislative elections took place in January. Democratic Progressive Party candidate Tsai Ing-wen won the presidency, and her party obtained a majority in the legislature for the first time in Taiwan’s history. Observers regarded the elections as free and fair, although there were allegations of vote buying by candidates and supporters of both major political parties. According to statistics from the Supreme Prosecutors Office, as of January prosecutors charged a total of 1,057 people with vote buying. In February re-elected Kuomintang legislator Chien Tung-ming was indicted for alleged vote buying, and Taichung prosecutors filed a petition asking the court to nullify his election. According to the Civil Servants Election and Recall Act, a lawsuit seeking election nullification can be appealed only once, a process that generally takes one year. Chien’s wife and 86 campaign staffers and supporters were also indicted in the case.[1]
[1] US Department of State, Taiwan – Country Report on Human Rights Practices 2015, p.8
The report provides no information that would suggest there is any repression by the current government of citizens, or of those expressing opposition to the government, nor restrictions on political opposition. There is no indication of political instability. The report does not detail any significant abuses of human rights or impediments to freedom of speech. It indicates that domestic and international human rights groups generally operate without restriction and authorities are corporative and responsive to their views.[2]
Discrimination against mainland Chinese
[2] US Department of State, Taiwan – Country Report on Human Rights Practices 2015, p.10
The above report provides:
National/Racial/Ethnic Minorities
As of July spouses born in Vietnam, Indonesia, Thailand, the Philippines, or the PRC accounted for 2 percent of the population. Foreign and PRC-born spouses were targets of discrimination both inside and outside the home.
In December the legislature passed amendments to the Nationality Act that ease restrictions on naturalization of foreign spouses married to Taiwan passport holders. Under the amended law, foreign spouses who divorce due to domestic violence or who become widowed can still naturalize. The amended law also removes the requirement that foreign spouses renounce their citizenship when applying for naturalization by extending the period for renunciation to one year after naturalization.
Authorities offered free Chinese-language and child-rearing classes and counseling services at community outreach centers to facilitate foreign-born spouses’ integration into society. LAF provided legal services to foreign spouses and operated a hotline to receive complaints. The Ministry of Interior operated its own hotline with staff conversant in Vietnamese, Cambodian, Thai, Indonesian, and English, as well as Chinese.
PRC-born spouses must wait six years to apply for Taiwan residency, whereas spouses born elsewhere may apply after three years. Unlike non-PRC spouses, PRC-born spouses have permission to work in Taiwan immediately on arrival. The amended Nationality Act does not apply to PRC-born spouses.[3]
[3] US Department of State, Taiwan – Country Report on Human Rights Practices 2015, p.15-16 the the will
Hearing, credibility, findings and assessment
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that both applicants are citizens of Taiwan and therefore their claims will be assessed against Taiwan.
In the Tribunal hearing the applicant husband initially gave evidence in the absence of the applicant wife. When the applicant wife gave evidence she did so in the presence of the applicant husband. A number of issues were discussed with both applicants while they were both in the hearing room.
The applicant wife indicated to the Tribunal in the hearing that she was making claims that she herself faced harm in Taiwan.
In the Tribunal hearing, the applicant husband confirmed his evidence to the delegate in the interview that he had never faced harm in Taiwan due to his political opinion. However, he said that he was threatened by individuals on [social media] when he made political posts on return to Taiwan in early 2015. He said individuals posting on [social media] said that they would find his address. The applicant husband indicated that this caused him significant psychological harm. The Tribunal noted to the applicant husband that this claim appeared inconsistent with his indication to the delegate that he had never faced harm in Taiwan as a result of his political opinions. The applicant husband indicated that this was not direct harm. The Tribunal indicated that it would have expected that if the applicant husband had received threats on [social media] with individuals indicating that they were going to track him down on the basis of his political opinion then this would have been mentioned to the delegate in the interview. In response the applicant husband indicated that this issue was not serious and that he does not have a fear of harm based on his political views. He indicated that his concern was the product of the poor economic situation under the current government.
The Tribunal indicated to the applicant husband that it was important that the Tribunal confirm this point. It asked the applicant husband again if he was saying that he did not have a fear of harm in returning to Taiwan based on his political opinion. The applicant husband confirmed this to be the case. He indicated however that the governing party creates a poor economic environment.
Later in the hearing, in discussing a claim by the applicant husband that he faced harm on the basis of having a wife born in mainland China, the applicant husband referred to the circumstances of him losing a job at a [workplace] at which both he and his wife worked in Taipei. The applicant husband indicated that he was sacked because his father was from mainland China. He also said that he had political arguments with his boss about the support of the applicant husband for the Kuomintang party. It was for these reasons that he was sacked. The Tribunal noted that this appeared to be inconsistent with his evidence that he had never suffered harm based on his political opinion. The applicant husband indicated that the sacking from his job was not the sort of harm that he thought was being envisaged when questioned.
The applicant wife, when she gave evidence to the Tribunal, confirmed that there was a period in which she and her husband were both working in a [workplace] in Taipei. The Tribunal asked the applicant wife about the circumstances in which they both left their jobs at this resturant. The applicant wife indicated that she left because the [workplace] wanted to employ younger people. She indicated that the applicant husband left because of poor wages.
The Tribunal noted to the applicant husband the evidence of the applicant wife who had made no reference to the applicant husband being sacked because of political issues or the ancestry of his father. In response, the applicant husband indicated that he had not told his wife this. The Tribunal indicated to the applicant husband that it found this explanation difficult to accept.
The Tribunal noted to the applicant wife that she had previously indicated a risk of harm in Taiwan based on her being from mainland China. The applicant wife said that this was not, in fact, a concern. The applicant wife indicated that they both much prefer to live in Australia. She referred to many political arguments, and protests in Taiwan, which she does not like. There was a general reference to the economic situation being poor.
When the applicant husband was giving evidence in the absence of the applicant wife, the Tribunal asked him whether his wife had ever suffered problems because of being from mainland China. The applicant husband said that she had not suffered any difficulties to his knowledge but that she might not have told him everything.
The Tribunal discussed with both applicants the independent information contained in this decision from the US Department of State concerning the political environment in Taiwan. The Tribunal indicated that this information suggested no difficulties for those in expressing opposition to the government in Taiwan or human rights abuses. The Tribunal indicated that the information would not suggest that either applicant would face any significant difficulties in Taiwan as a result of the political environment generally. In response both applicants indicated that they had no comment.

The Tribunal considers that the applicant husband has withdrawn a prior claim that he faces harm due to his political opinion. In any event, the Tribunal is not satisfied with the truth of claims by the applicant husband that he was sacked from his job in a [workplace] because of his political views, or due to him having a wife or father from mainland China. This is based on the applicant wife failing to corroborate this claim indicating different reasons for the applicant husband leaving this job. The Tribunal does not accept as credible that the applicant wife would not know if the applicant husband had been sacked for the reasons he claimed. The Tribunal also considers that, if the applicant husband had been sacked based on his political opinion or due to him having a father or wife from mainland China, this would have been referred to at an earlier point in the application process, particularly in the interview with the delegate.
The Tribunal is not satisfied that the applicant husband was seriously threatened on [social media] in 2015 by individuals threatening to track down the applicant causing the applicant psychological harm. The Tribunal considers that, if true, such a claim would have been made at an earlier point in the application process, particularly in the interview with the delegate. The Tribunal does not accept that if the applicant husband had suffered psychological distress as a result of these threats he would not have mentioned this harm to the delegate because it was not direct harm as he perceived it.
In any event, the applicant has not maintained a fear of harm based on political opinion.
In the Tribunal hearing, the applicant husband said that the only issue he had faced as a result of him having a wife from mainland China or due to the Chinese ancestry of his father was being sacked from the [workplace].
Given that the applicant husband has withdrawn a claim of harm based on political opinion, the Tribunal is not satisfied that there is a real chance of the applicant husband facing serious or significant harm as a result of his political opinion. The Tribunal accepts, though, that the applicant husband does not support the current ruling party in Taiwan and supports the Kuomintang party, although he has never been a member of the party or supported it other than voting for the party, as he indicated in the hearing.
For the avoidance of doubt, the Tribunal is not satisfied that there has been any past serious or significant harm suffered by the applicant husband in relation to his support for the Kuomintang party to suggest similar harm in the future, or that his ongoing support of this party would cause the applicant to face a real chance of serious or significant harm, including as a result of the independent information before the Tribunal indicating a stable political environment in Taiwan.
The Tribunal is prepared to accept that the applicant husband and the applicant wife do not like the public political debates in Taiwan. The Tribunal is not satisfied that this dislike of politics in Taiwan constitutes serious or significant harm. The Tribunal is not otherwise satisfied that the applicant wife faces a real chance of serious or significant harm based on the political views of her husband, or herself.
As indicated, the Tribunal does not believe that the applicant husband was sacked because of having a father or wife from mainland China. The applicant husband has indicated that this was the only instance of harm for those reasons. There is no independent information before the Tribunal supporting the position that there is widespread mistreatment or discrimination of those from mainland China or their families that would constitute persecution or significant harm, although acknowledging that the US Department of State does indicate that there can be discrimination towards Chinese born spouses. The Tribunal is not satisfied on all of the evidence that the applicant husband faces a real chance of serious or significant harm based on having a father or wife from mainland China.
Given the indication by the applicant wife in the Tribunal hearing that she had faced no difficulties in Taiwan based on being from mainland China, and did not have a fear of harm on this basis, the Tribunal is not satisfied that the applicant wife faces a real chance of serious or significant harm in Taiwan based on being from mainland China. Further, there is no independent information before the Tribunal that would support the contention that mainland Chinese in Taiwan, including as spouses, are subject to mistreatment or discrimination that would reach the level of persecution or significant harm.
The Tribunal discussed with both applicants in the hearing claims that the economic situation in Taiwan is poor, that it is difficult to obtain a job, and the environment is much better in Australia. As indicated to the applicants in the hearing, the Tribunal does not consider that any difficulties faced by the applicants in Taiwan because of poor economic conditions would be for a refugee criterion reason (set out in s.5J(1) of the Act) and therefore would not meet the refugee criterion. The harm in such an instance would simply be a product of the general economic environment. The applicants had no comment to this view expressed to them in the Tribunal hearing.
In relation to the complementary protection criterion, as discussed with the applicants in the hearing, the Tribunal considers that difficulties due to the economic situation in Taiwan do not fall within any definition of significant harm for the purpose of the criterion. Further, any such harm would be faced by the population of the country generally and not faced by the applicants personally (s.36(2B)(c)). For those reasons, the complementary protection criterion is not met in relation to economic harm. The applicants indicated that they had no comment on this view expressed to them in the Tribunal hearing.
On the Departmental file there appears a Certificate and Notification issued pursuant to s. 438 of the Act which indicates that the disclosure of certain information on the file would be contrary to the public interest because it contains information relating to internal working documents and business affairs. The Tribunal does not consider that information which are working documents and relate to business affairs justifies public interest immunity. The Tribunal therefore does not consider that the Certificate has been validly issued pursuant to s.438 of the Act. In any event, the information has no significance to any of the applicants’ claims or is relevant to credibility.
In summary, in relation to the refugee criterion, the Tribunal is not satisfied that either applicant has a well-founded fear of persecution for a refugee criterion reason for any of the reasons claimed, or for any other reasons.
In summary, in relation to the complementary protection criterion, the Tribunal is not satisfied that either applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Taiwan, there is a real risk that they will suffer significant harm for any of the reasons claimed or for any other reasons.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
David McCulloch
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2017] AATA 1641

1 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice