1703921 (Refugee)

1703921 (Refugee) [2020] AATA 1307 (28 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703921
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Paul Windsor
DATE:28 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 April 2020 at 4:16pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – religion – former member of religious organisation Tenrikyo – strict controls and limitation on personal liberty – persecution of followers seeking to leave the organisation – failure to attend Tribunal hearing by telephone – claims not supported by country information – effective State protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 on 9 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Taiwan, applied for the visa on 11 August 2015.
In his Protection visa application the applicant indicated that he was born on [date] in Taipei city in the Republic of China (Taiwan), is of Han ethnicity and has never married or been in a de facto relationship. He did not indicate he practices any religion. He indicated he last departed his home country [in] August 2014 legally through Taoyuan International Airport in Taiwan and arrived in Australia [in] August 2014, entering on a Working Holiday visa.[1]
[1] See the Departmental file.
The applicant indicated in a statement included with his application that he sought protection in Australia because he was once a member of the religious organisation Tenrikyo and was strictly controlled and had his personal liberty limited by the organization.[2]
[2] See the Departmental file.
The delegate refused to grant the visa finding that the applicant’s claims were vague with minimal detail and no supporting evidence was provided. The delegate noted that the applicant first arrived in Australia as the holder of a subclass 417 (Working Holiday) visa [in] June 2013, departed Australia [in] June 2014 and obtained another Working Holiday visa offshore before arriving in Australia again [in] August 2014, but did not seek protection until 11 August 2015. The delegate considered that the delay in the applicant seeking protection in Australia and him returning to Taiwan raises doubts about the genuineness of his claims. The delegate also found that available country information does not support the view that Tenrikyo is a religious cult that persecutes its followers.
The applicant applied to the Tribunal for review of this decision on 6 March 2017. The applicant provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
The Tribunal wrote to the applicant on 12 March 2020 informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to appear before the Tribunal on 8 April 2020 to give evidence and present arguments relating to the issues arising in his case.
The applicant responded on 18 March 2020 advising that ‘due to the COVID-19’ he had decided not to attend the hearing for his safety. He commented ‘I agree with the tribunal to make a fair decision based on my existing paper information’.
On 24 March 2020 the Tribunal advised the applicant that his hearing had been postponed, to minimise the risk of transmission of COVID-19 (coronavirus), and the Tribunal would contact him shortly to make alternative arrangements for the hearing.
Considering the circumstances presented by the COVID-19 pandemic and having regard to the nature of this matter and the individual circumstances of the applicant, the Tribunal determined it was reasonable to hold a hearing with the applicant by telephone. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the likely delay to the matter if the hearing was not to be conducted by telephone. The Tribunal was satisfied that the applicant could be given a fair opportunity to give evidence and present arguments through a telephone hearing.
Accordingly, on 23 April 2020 the Tribunal wrote to the applicant indicating that to help slow the spread of COVID-19, the AAT has not been holding face to face (in person) hearings since Monday, 23 March 2020 and is currently closed to all visitors until further notice. The Tribunal indicated that, as it is not holding in-person hearings at the AAT, it was arranging for him to appear by telephone. He was invited to appear before the Tribunal by telephone at 11:30 am on 12 May 2020 and was advised that the Tribunal would call him at that time and date, so he could give evidence and present arguments relating to the issues arising in his case, with the assistance of an interpreter in the Mandarin and English languages.
The applicant was advised that if he had any concerns about his ability to participate in a telephone hearing, he should inform the Tribunal of this as soon as possible, and the presiding Member will consider any submissions he makes regarding why it is not suitable for his hearing to proceed by telephone.
The applicant was also advised that he should provide all documents he intends to rely on to establish that he meets the criteria for the visa, that the decision made by the Department to refuse to grant the visa should set out the reasons why he did not meet the criteria, and he should have regard to these, and any changes in his circumstances, in providing documents and preparing for the hearing.
On 28 April 2020 the applicant responded indicating that, after careful consideration, he had decided not to attend the telephone hearing. He did not provide reasons for this decision, or raise any concerns regarding his ability to participate in a telephone hearing, but commented that he trusts the Tribunal can give him a fair decision based on his ‘existing paper information’. The applicant did not provide any further documents or argument in support of his claims or addressing the reasons why the delegate refused to grant him a Protection visa.
In light of the applicant’s advice that he does not wish to participate in a telephone hearing and that a decision be made on his review application on the existing paper information, the Tribunal has proceeded to finalise the review on this basis.
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 themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection were set out in a brief statement included with his Protection visa application. His claims are summarised as follows:[4]
·     He was once a member of the religious organisation Tenrikyo. He was strictly controlled by the organisation and his personal liberty was limited by it. He became a slave of the religion. He couldn’t even choose his own spouse. He was obliged to make greater and greater contributions to the organisation or else he would be discriminated against, punished or confined.
·     If he tried to quit his family members would be involved as the organisation has a guarantee mechanism between family members. His close friends would also alienate him. Public opinion, religious disciplines and ‘the collective nonchalance’ would combine to make him a ‘deserted child of the society’. The pressure the society has placed on him is too great for him to stand up to personally.
·     One of his friends tried to quit but was confined by them. He all but lost his life.
·     There is nowhere he can air his grievances. The government doesn’t bother to take care of such trifling things.
·     To defend his human rights and freedom he fled to Australia to make an application for protection, in order that he can be relieved of the religious oppression on him and live a free life.
[4] See the Departmental file.
Findings and reasons
Identity
On the basis of the copy of his Taiwanese passport submitted to the Department,[5] the Tribunal accepts that the applicant is a national of Taiwan and that his identity is as claimed. The Tribunal accepts that Taiwan is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[5] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Taiwan, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
For the reasons set out below the Tribunal found that the applicant has not established his claims.
Assessment of claims
Background - Tenrikyo
The delegate has set out in their decision record background information on Tenrikyo and freedom of religion in Taiwan drawn from the US Department of State’s 2015 Report on International Religious Freedom; the 2015 Yearbook of the Republic of China (Taiwan); a news report from the Taipei Times; Freedom House; the international website for Tenrikyo; and a 2016 academic paper by Yueh-po Huang entitled The Birth and Development of Tenrikyo in Taiwan. Relevant information from these sources is summarised as follows:
·The constitution of Taiwan provides for freedom of religious belief. It provides for the free exercise and equal treatment under the law of all religions, which ‘shall not be restricted by law’ except as necessary for reasons of protecting the freedoms of others, imminent danger, social order, or public welfare.
·There were no reports of significant societal actions affecting religious freedom.
·Religious organisations can register voluntarily with the authorities. To register they must be active in more than seven of the nine administrative regions and possess real estate assets in excess of 5 million New Taiwan Dollars (NT$) or total non-real estate assets in excess of NT$30 million. Registered religious organisations operate on a tax-free basis and must submit annual reports on their financial operations.
·In 2016 delegates at an international conference in Taipei issued a Taiwan Declaration for Religious Freedom stating that freedom of thought, conscience and religion was an inalienable human right. They called for the review of any laws limiting freedom of conscience and expression. Delegates also promised to work to protect the rights of religious minorities while publicly condemning any acts of intolerance, discrimination, persecution or violence perpetrated in the name of religion.
·Tenrikyo came into existence on 26 October 1838 in Japan. Its origins lie in revelations given to a Japanese farmer’s wife (Miki) whose husband offered her as a spiritual medium to a then unknown supernatural power, who came to be known as ‘God the Parent’. Miki became a sacred spiritual medium and founder of the new religion. Tenrikyo spread throughout Japan and to many other countries.
·Much of Tenrikyo’s history and missionary development in Taiwan can be traced back to its links with the Japanese colonisation of Taiwan from 1895-1945. From 1998 to 2004 Tenrikyo in Taiwan has continued to do well in terms of churches and number of followers. Its success in Taiwan can be attributed to the multiple areas of compatibility between Taiwanese popular religion and Tenrikyo, such as ancestral veneration, a monotheistic cosmology and religio-magical healing; that it provides Taiwanese followers with a religious means to embrace modernity; and the positive evaluation of Japan by a part of the Taiwanese population.
·Tenrikyo has obtained recognition by the Taiwanese authorities.
Consideration of the applicant’s claims
Despite the delegate’s findings that the available country information does not support the view that Tenrikyo is a religious cult that persecutes its followers, and that the information provided by the applicant setting out his claims was vague, with minimal detail and no supporting evidence, the applicant has not provided any additional information addressing the delegate’s findings, either elaborating on his claims or showing instances of mistreatment by Tenrikyo members or supporters of its followers or those seeking to leave the organisation.
In relation to his claims the applicant has not provided any detail of his claimed involvement with Tenrikyo, such as when and why he joined, what contributions he was obliged to make and how his behaviour was controlled by the organisation, such that he became ‘a slave’ of the religion. He has not elaborated on his statement that he could not choose his own spouse, such as by indicating who he wished to marry and why that could not proceed, or whether he was being pressured to marry someone he did not wish to marry. If the latter was the case, he did not indicate how he was able to avoid marrying someone he did not wish to marry.
The applicant has not explained how, if he was being strictly controlled (like a slave), he managed to come to Australia on a Working Holiday visa in June 2013 and was able to return to Australia in August 2014, after having returned to Taiwan (see his response to question 71 of his application where he indicates he returned to Taiwan [from] June [until] August 2014). He does not indicate why he chose to return to Taiwan in June 2014 if he faced a real chance of suffering serious harm there.
While the applicant stated that he was ‘once’ a member of Tenrikyo, he has not indicated whether he was able to quit or ever tried to quit the organisation and, if so, what pressure was put on him. He has not sought to explain the nature of any ‘guarantee mechanism’ between family members, how his family members would become ‘involved’ if he sought to quit the organisation, and what has happened in this regard since he last departed Taiwan in August 2014. In his application he indicated (at question 45) that he continues to contact his relatives outside Australia, suggesting that he is not estranged from them or being pressured to return to Taiwan and recommit to Tenrikyo.
The applicant also does not elaborate at all on the circumstances of his friend who he claims tried to quit Tenrikyo but was ‘confined’ and ‘all but lost his life’.
The Tribunal also finds the applicant’s claims are at odds with the country information cited above indicating that there are constitutional safeguards regarding religious freedom in Taiwan; there has been a commitment by civil society to the protection of the rights of religious minorities and condemnation of any acts of intolerance, discrimination, persecution or violence perpetrated in the name of religion; and that there were no reports of significant societal actions affecting religious freedom. No evidence has been provided by the applicant or otherwise located that indicates or suggests that Tenrikyo engages in treatment amounting to persecution of its followers or those who seek to leave the religion/organisation.

The Tribunal also finds that the applicant has not provided any information or evidence to indicate or suggest that he ever sought assistance from the Taiwanese police or other authorities, and hence there is nothing to support his assertions that there is nowhere he can ‘air my grievances’ and that ‘the government doesn’t bother to take care of such trifling things’. In this regard, the Tribunal notes that country information indicates the following in relation to the effectiveness of the police, legislature and judicial system in Taiwan:
·     Operating within a low-crime environment (Taiwan has a low crime rate and one of the lowest violent crime rates worldwide), the Taiwanese National Police Administration (NPA) is effective and well-regarded. The NPA’s main missions are to carry out police and law enforcement in Taiwan, maintain public order, uphold the safety of its citizens and society, prevent hazards and promote the welfare of its citizens.[6]
·     Excessive use of force by police is relatively rare, and attorneys are allowed to monitor interrogations to prevent torture.[7]
·     In 2016, an independent survey showed rising levels of confidence in citizen satisfaction with the police, reaching over 73% in that year.[8]
·     The judiciary is independent, with court rulings generally free from political or other undue interference.[9]
·     The judicial system provides ample opportunities to seek redress for rights violations, with court trials following due process.[10]
·     Judicial corruption is not endemic. Nonetheless, throughout her presidential campaign President Tsai has highlighted judicial reform as one of the core policy goals of her administration in order to address popular mistrust in the country’s court system.[11] Some political commentators and academics have publicly questioned the impartiality of judges and prosecutors involved in high profile, politically sensitive cases.[12]
[6] ‘Taiwan 2018 Crime and Safety Report’, Overseas Security Advisory Council (OSAC), US Department of State, 2 July 2018, CIS7B839419268.
[7] ‘Freedom in the World 2018 – Taiwan’, Freedom House, January 2018, p.5, F. Rule of Law, NGED867A615
[8] ‘Statistics shows satisfaction with police reached all-time high 73.3%’, National Police Agency, Ministry of Interior, 23 September 2016, CIS38A80123706
[9] ‘Freedom in the World 2018 – Taiwan’, Freedom House, January 2018, p.4, F. Rule of Law, NGED867A615
[10] ‘BTI 2018 Country Report – Taiwan’, Bertelsmann Stiftung, 23 March 2018, CIS7B83941566
[11] Ibid
[12] ‘Country Reports on Human Rights Practices for 2017 – Taiwan’, US Department of State, 20 April 2018, p.4, Section 1e, OGD95BE927327
The Tribunal finds the country information indicates that, should the applicant have required it, the authorities in Taiwan would have been able to provide effective protection to him, which is accessible and durable, consisting of appropriate laws, a reasonably effective police force and an impartial judicial system. The Tribunal concludes that the applicant did not seek protection in Taiwan because he did not require it.
Considering the available information, the Tribunal finds the applicant has not established his claim to have been a member of Tenrikyo who suffered treatment amounting to persecution involving serious harm, either because the religion strictly controls and limits the personal liberty of its members or because he sought to quit the organisation which he was not permitted to do and which resulted in action being taken against him to prevent him from doing so.
Refugee criterion
Having carefully considered the applicant’s claims the Tribunal concludes there is not a real chance that he would suffer persecution involving serious harm from members and/or supporters of the Tenrikyo religious organisation, including his family members, friends or Taiwanese society generally, should he return to Taiwan in the reasonably foreseeable future.
Accordingly, 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 criterion
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Taiwan, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[13]
[13] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Taiwan, there is a real risk that he would suffer significant harm as set out in s.36(2A) from members and/or supporters of the Tenrikyo religious organisation, including his family members, friends or Taiwanese society generally.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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.
Paul Windsor
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.
…

[2020] AATA 1307

28 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Natural Justice