1621605 (Refugee)

1621605 (Refugee) [2017] AATA 2981 (22 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621605
COUNTRY OF REFERENCE:                  Taiwan
MEMBER:Christopher Smolicz
DATE:22 December 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 December 2017 at 1:34pm
CATCHWORDS
Refugee – Protection visa – Taiwan – Ethnicity – Chinese born in Myanmar – Social group – Foreigner – Victim of societal discrimination
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIAC v SZQRB [2013] HCATrans 323
MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610
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 and Border Protection [in] December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
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.
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 and Border Protection – 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 whether the applicant meets the refugee or complementary protection criteria because she is a person of Chinese ethnicity who was born in Myanmar (formerly Burma).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is [age] years old. She has not been married and has not been in a de facto relationship. She was born in Yangon, Myanmar. She declared that her ethnicity is Chinese. The applicant travelled to Australia as the holder of a passport issued by the Republic of China (Taiwan). The applicant claims to be a citizen of Taiwan.
She first arrived in Australia [in] August 2012 as the holder of a [temporary] visa. The visa was valid until [August] 2013.
[In] March 2013 the applicant was granted a second [temporary] visa. The visa was valid until [August] 2014
[In] November 2014 the applicant was granted a [different temporary] visa which was valid until [February] 2015.
The applicant departed Australia and travelled to [another country] for a holiday [in] May 2013 and returned [in] May 2013.
[In] August 2014 she departed Australia and returned to Taiwan. She returned to Australia [in] November 2014.
The applicant applied for the protection visa [in] January 2015.
Summary of substantive claims
The applicant is seeking protection so that she does not have to go back to Taiwan.
The applicant claims she was born in Burma and described herself as a [descendant] of the Chinese Expeditionary Force. Due to political reasons, people like her were not recognised by the Burmese government.
In 2012 she was issued a Taiwanese passport; however, she claims that she was not accepted by the Taiwanese people who treated her as an inferior person. She claims that Chinese people always discriminate against other races, especially against someone like her.
She could only obtain low level labour work and her salary was lower than the minimum wage.
She claims there is no ‘discrimination law’ in Taiwan and the government cannot do anything about this issue.
She has not experienced any physical harm but she is deeply harmed mentally. If she continues to stay in Taiwan she could develop a mental illness.
Nothing has changed in Taiwan since she has left. The authorities cannot help her because there are no anti-discrimination laws in Taiwan. She fears she will have the same experience if she returns.
She found Australia to be a free and democratic society based on the rule of law where discrimination is prohibited and working conditions are protected.
The applicant claims she just wants to find a place in the world which has equal life, and not to be treated as an inferior person.
Tribunal hearing
The applicant said that she moved from Myanmar to Taiwan in September 2002. She completed her schooling and four-year university studies in Taiwan. She successfully obtained a bachelor’s degree in [an area of study].
After her studies she found it difficult to obtain employment relevant to her qualifications because she was not a citizen of Taiwan. In 2012 she was granted Taiwanese citizenship.
A friend told her that she could travel to Australia to start a new life. Instead of looking for work in Taiwan she applied for a [temporary] visa and travelled to Australia.
When she was in Australia she met a person from her community who told her she could apply for a protection visa if she wanted to remain in Australia. The man was not a migration agent. She paid him $[amount] and he lodged the protection visa application for her. She subsequently was unable to locate the person.
The Tribunal questioned the applicant about her claims for protection in Taiwan. The applicant said that she experienced discrimination at school because she was from Myanmar. She had no friends. She could read in Chinese (Mandarin) but study was difficult because her Chinese language skills were not at the same level as the Taiwanese students. The teachers did not help her. The teachers would use derogatory names and referred to her as ‘overseas students [sic]’. The administrative staff were not helpful because they were not given extra resources to assist students in her position.
When she worked as [Occupation 1] she was paid less than others. When her employer and his wife argued they would vent their anger on her.
She never experienced any physical harm but felt psychological harm in Taiwan. She has not been diagnosed with any psychological or mental illness.
The Tribunal discussed the country information (detailed below) with the applicant at the hearing. The applicant said she was aware that anti-discrimination laws existed but people in Taiwan would not obey them. She said that when she worked as [Occupation 1] people would use sexually derogatory language. There was no physical violence towards her.
Findings
The Tribunal finds the applicant was born in Yangon, Myanmar. The Tribunal accepts the applicant travelled to Taiwan in 2002 and acquired Taiwanese citizenship [in] July 2012.
The Tribunal finds that the applicant travelled to Australia on a validly issued Republic of China (Taiwan) passport.
The Tribunal has had regard to country information which indicates that Taiwan does not recognise dual citizenship and requires foreigners to renounce their original citizenship before they can apply for Taiwanese citizenship.[1] The Tribunal finds that the applicant is a Taiwanese national and has assessed her claims against Taiwan as the receiving country.
[1] Rudi Smith, “Turning Taiwanese: A Step-By-Step Guide to Acquiring Taiwanese Citizenship” Taiwanease, 01 April 2013, CIS36DE0BB2228
If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).
Race and Nationality
The Tribunal finds that the applicant was born in Myanmar and is of ethnic Chinese origin. The Tribunal accepts that the applicant may have been underpaid and treated unfairly by her former employer in Taiwan because she was considered a foreign worker (ethnic Chinese born in Myanmar).
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides some guidance but is not definitive.[2] It states:
74. The term “nationality” in this context is not to be understood only as “citizenship”. It refers also to membership of an ethnic or linguistic group and may occasionally overlap with the term “race”. Persecution for reasons of nationality may consist of adverse attitudes and measures directed against a national (ethnic, linguistic) minority and in certain circumstances the fact of belonging to such a minority may in itself give rise to well-founded fear of persecution.
[2] Chan v MIEA (1989) 169 CLR 389 at 392, per Mason CJ.
The Tribunal has assessed the applicant’s fear of persecution in Taiwan for the overlapping grounds of race and nationality.
Country information reports that Taiwan is a largely homogenous society. Taiwanese people make up 84 per cent of the population and mainland Chinese constitute 14 per cent of the population.[3] Members of 16 indigenous tribes make up around two per cent of the population.[4] Indigenous people continue to face social and economic discrimination.[5]
[3] ‘Political Risk Yearbook: Taiwan Country Report’, January 2017, The PRS Group, CISEDB50AD4256, p.10
[4] ‘Freedom in the World 2016 – Taiwan’, Freedom House, 29 June 2016, NGE43874C341, p.2, B. Political Pluralism and Participation
[5] ‘Freedom in the World 2016 – Country Report on Human Rights Practices 2016 – Taiwan’, US Department of State, 3 March 2017, OGD95BE926957, p.15, Section 6 ‘National/Racial/Ethnic Minorities’ Taiwan’, Freedom House, 29 June 2016, NGE43874C341, p.4, F. Rule of Law
The Tribunal has had regard to recent media reports which confirm that Taiwan has a population of about 40,000 Burmese and that many Burmese in Taiwan have established successful businesses in Huaxin Street in Taipei where recent economic and political reforms have presented a number of opportunities to Taiwan’s Burmese community.[6]
[6] Taiwan’s Little Burma 18 March 2017, The Diplomat >
In relation to the historic reasons for Burmese traveling to Taiwan it is reported that:
Huaxin Street, or “Little Burma,” has its origins in the Chinese Civil War. With the war drawing to a conclusion in the late 1940s, many Kuomintang troops fighting the guerrilla Communists were forced to flee over the border to neighboring Burma (known today as Myanmar), then still part of British India. When the Civil War ended and Chiang Kai-shek was forced to flee across the strait to Taiwan, many KMT troops were thus left behind in Burma, pending instructions to re-take the mainland. Those instructions never came, and these men were subsequently trapped in Burma.
When it became obvious that a KMT invasion of the mainland was a distant pipe dream, those left in Burma were repatriated to Taiwan. By 1954, estimates suggest that around 7,000 soldiers and dependents were given residency and evacuated to Taiwan. Those evacuated to Taiwan also included overseas Burmese-Chinese who had roots in Burma for decades prior to the Chinese Civil War. Whilst most chose Taiwan as their new home, other options were available, and subsequently some moved to Hong Kong and Macau. Other even moved as far away as Brazil. In the decades that followed, thousands more were to make the move to Taiwan.[7]
[7] Taiwan’s Little Burma 18 March 2017, The Diplomat >
In assessing the applicant’s claims the Tribunal notes that Article 7 of the Republic of China (Taiwan) Constitution proclaims that persons are equal before the law regardless of their gender, religion, race, social class and political affiliation. Article 10 of the Amendments to the Constitution also declares that the state shall uphold personality and dignity of women, protect their personal safety, eliminate gender discrimination and promote gender equality.
In assessing the applicant’s claims the Tribunal has also had regard to the following country information regarding Taiwan’s employment and anti-discrimination laws. The Tribunal discussed the information with the applicant at the hearing. The Tribunal notes that racial discrimination and ethnic discrimination in the workplace in Taiwan are a growing problem. Relevantly it has been reported that:
Owing to the fact that Taiwan is an island of immigrants, the different waves of immigration over the last three centuries has shaped diverse “ethnic” identities, an issue which has gained prominence due to a government efforts in promoting policies of “localization.” Despite the fact that the Han-Chinese make up the vast majority on the island, they are often divided into three ethnic groups based upon their “provincial origin” and time in which their ancestors immigrated to Taiwan. These groups are the Hoklo (from Fujian, accounting for about 65% of the ethnic Han majority), Hakka (primarily from Guangdong, accounting for about 15% of the ethnic Han majority) and Mainlanders (wave of immigrants from various regions of China following the Nationalist government’s relocation after the Chinese Civil War, accounting for 14% of the ethnic Han majority).^[8]
[8] Employment Discrimination in Taiwan, Cing-Kae Chia, Academia Sinica, New developments in employment discrimination law: 2008 JILPT Comparative Labor Law Seminar, JILPT Report No. 6, 2008
The Tribunal notes however that Taiwan has ratified the International Labour Organization conventions concerning employment discrimination namely No. 100 Equal Remuneration Convention and No.111 Discrimination in 1958 and 1961. It has been reported that although Taiwan has no legal way of enforce the conventions due to its expulsion from the United Nations in 1971, that Taiwanese government has devoted substantial recourse to incorporate these international conventions into its domestic labour laws.[9]
[9] Employment Discrimination in Taiwan, Cing-Kae Chia, Academia Sinica, New developments in employment discrimination law: 2008 JILPT Comparative Labor Law Seminar, JILPT Report No. 6, 2008 >
Specifically, the Tribunal notes that Taiwan has the following laws addressing issues such as equal pay and employment discrimination which are relevant to assessing the applicant’s claims:
·     Employment Services Act 1992 which states that in order to ensure national workers’ employment opportunity and equality, employers cannot discriminate against employees and job applicants on the basis of race, class, language, thought, religion, marital status, party affiliation, age, birthplace, one’s provincial/county origin, gender, sexual orientation, facial features, appearances, disabilities and former membership in a labour union. Article 5 of the implementation of the regulations also mandates that municipal cities, county and city governments form commissions on employment discrimination to enforce the Act. Currently commissions have been established throughout Taiwan (Article 5).
·     Gender Equality in Employment Act 2002 which addresses issues of gender discrimination in the workplace.
·     Labor Standards Act which deals with wage equality such as equal pay for equal work regardless of gender (Article 25).
The next question the Tribunal has considered is whether the persecution feared by the applicant amounts to serious harm if she returned to Taiwan in the reasonably foreseeable future.
For the purposes of s.5J(4), s.5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test.[10] The following are listed as instances of ‘serious harm’: (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.
[10] MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 per French CJ, Kiefel, Bell and Keane JJ at [48], Gageler J agreeing.
The applicant gave evidence that she has not experienced any physical harm in Taiwan because of her race or nationality. The applicant claims she was harmed mentally as a consequence of the discriminatory conduct she experienced in Taiwan. The Tribunal raised with the applicant that in certain circumstances discriminatory treatment can indeed give rise to psychological harm sufficient to amount to ‘serious harm’.[11]
[11] SCAT v MIMIA [2003] FCAFC 80.
The applicant’s representative, who attended the hearing by telephone, requested time to obtain a psychologist report. The Tribunal noted that the review application was lodged with the Tribunal on 16 December 2016. The Tribunal expressed concern that no reports or submissions had been provided prior to the hearing. The Tribunal was told that the applicant had only recently obtained new representation and the agent who had conduct of the file was overseas. In the circumstances the Tribunal agreed to provide the applicant with time to make enquires whether she could obtain a report and what timeframes she required.

The applicant did not provide the Tribunal with any report or submissions within the timeframes set by the Tribunal. The Tribunal contacted the applicant’s representative and confirmed that it had not received any response and that it would be proceeding to make a decision in the matter. No submissions were provided and no request was made for an extension of time. In the circumstances the Tribunal has proceed to make a decision on this matter.
The Tribunal has considered the applicant’s claims and accepts the applicant was subjected to societal discrimination in Taiwan because she was considered a foreigner of Chinese ethnicity who was born in Myanmar. The Tribunal accepts the applicant experienced discrimination at school because she was not proficient in Chinese writing. The Tribunal accepts that during her employment in Taiwan the applicant experienced derogatory language from customers and would be underpaid wages by her employer because she was considered a foreigner. As stated above the applicant claims she was harmed mentally as a consequence of the discriminatory conduct she experienced in Taiwan. The Tribunal has had regard to the applicant evidence and accepts that the applicant would have felt stressed and humiliated at times. Having considered the applicant’s evidence and the Tribunal does not accept that the mental harm experienced by the applicant amounts to persecution.
In making this finding the Tribunal has had regard to the applicant’s personal circumstances in Taiwan and notes that the applicant was able to work and successfully complete her studies and she has obtained a bachelor’s [degree]. The Tribunal also finds that in 2012 she became a citizen of Taiwan. She is entitled to the full protection of Taiwan’s anti-discrimination laws and there is no suggestion that the authorities will withhold protection to the applicant for any of the grounds mentioned in 5J(1)(a) of the Act. The Tribunal finds that her qualifications and work experience place the applicant in a strong positon to obtain new employment in Taiwan which is relevant to her qualifications.
In conclusion, the Tribunal has considered the cumulative effect of the discrimination experienced by the applicant in Taiwan because she is a person of ethnic Chinese origin who was born in Myanmar. Looking to the reasonably foreseeable future, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm in Taiwan because of the combined grounds of her race and/or nationality. The Tribunal finds that the applicant’s fear of persecution is not well-founded.
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).
Complementary protection criteria
The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk she will suffer significant harm.
The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[12]
[12] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
There is no suggestion that the applicant will be arbitrarily deprived of her life or subjected to the death penalty or torture if she returns to Taiwan. The Tribunal has considered the applicant’s claims and does not accept that the discrimination experienced by the applicant in Taiwan amounts to cruel or inhuman treatment or punishment or degrading treatment or punishment that is intentionally inflicted.
Looking to the reasonably foreseeable future, the Tribunal has had regard to the applicant’s personal circumstances and notes that she has obtained a bachelor’s degree in Taiwan and became a citizen of Taiwan in 2012. The Tribunal finds she has the full protection of Taiwan’s anti-discrimination laws and there is no suggestion that the authorities will withhold protection or that the applicant will not be able to access the protection from the authorities in Taiwan.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
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 2981

22 December 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice