1715460 (Refugee)

1715460 (Refugee) [2024] AATA 4336 (7 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715460
CASE NUMBER:  1813990
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Andrew Verduci
DATE:7 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 August 2024 at 3:41pm
CATCHWORDS
REFUGEE – Protection Visa – Taiwan – blamed for products that went missing – demand for money by the second-named applicant’s business partner – significant inconsistency – fears harm from money lenders – voluntarily return to Taiwan twice – victims of generalised violence if China attacks – significant delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 423, 424, 499
Migration Regulations 1994, Schedule 2
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
BACKGROUND

Applicant 1 (the first-named applicant) is a [age]-year-old male citizen of Taiwan. He last arrived in Australia on or around [date] April 2016 on a Working Holiday (Subclass TZ 417) visa. He applied for a Protection visa on 7 April 2017 which was refused by a delegate of the Minister for Home Affairs under s 65 of the Migration Act 1958 (Cth) (the Act).
Applicant 2 (the second-named applicant) is a [age]-year-old female citizen of Taiwan. She last arrived in Australia on or around [date] July 2017 on a Working Holiday (Subclass TZ 417) visa. She applied for a Protection visa on 30 August 2017 which was refused by a delegate of the Minister for Home Affairs under s 65 of the Migration Act 1958 (Cth) (the Act).
Together, they are ‘the applicants’. The applicants met in Australia and are now married. They have a daughter together, but there is no evidence before me that she has had an application for a Protection visa refused and she is not an applicant for review in these proceedings.
Protection visa applications
The Protection visa applications lodged by the first and second-named applicant lack critical information about their background and personal circumstances. Information about each of their family members, their travel history and their previous employment in Taiwan is either missing, incomplete or claimed to be wrong, for example. Each of their written reasons for leaving Taiwan are also brief. In summary:
a.The first-named applicant says that he left Taiwan because he offended the gangster and was accused of stealing his property. This person ‘threaten to cut off my if I did not pay him’. He says that he was insulted and beaten up in public, and fears that he will lose his hand and be hurt if he returns. The gangsters know where he lives and will send a man around to hurt him and cut off his hand. He did not seek help from the police because the gangster boss is a powerful man in Taiwan and the police cannot protect him all the time (errors in original).
b.The second-named applicant says that she left Taiwan because of threats from her ex-business partner if she did not pay the lost business money. This person has threatened to vanish her and threaten her family. In response to the questions did you experience harm, did you seek help and did you move or try to move to another part of the country, the second-named applicant has put a tick in the box saying ‘no’.
Applications for review
The first-named applicant applied for a review with this Tribunal on 17 July 2017. He is given the Tribunal case number 1715460. The second-named applicant lodged a separate application for review with this Tribunal on 14 May 2018. She is given the Tribunal case number 1813990.
Both applications for review were first constituted to former Member Mr Biviano. The first and second-named applicants appeared in person before former Member Mr Biviano on 23 May 2023. Mr Biviano ceased to be a member of this Tribunal after the applicants had appeared before him but before a decision had been made. The applications have now been constituted to me to complete the review.
I have listened to the complete audio recordings of the first and second-named applicants hearing and I have access to, and I have considered, all the material in the Tribunal’s electronic case files.
With their prior consent, both applicants were invited to appear before me in person and at a combined hearing on 5 August 2024 to give evidence and present arguments about the issues arising in relation to the decisions under review. The invitation advised that they would be appearing before me.
At the commencement of the hearing, I explained to the applicants that Mr Biviano had ceased to be a Tribunal member before making a decision on their applications for review. I informed them that I had listened to the complete audio recording of their previous hearing and that I had access to, and had considered, all the evidence and submissions that they had already provided.
The hearing before me, and also before former Member Biviano, was conducted with the assistance of an interpreter in the Mandarin and English languages.
In addition to the claims written in the applicants Protection visa applications, they have each raised a new claim during the course of this review. This new claim relates to a fear of being harmed in Taiwan because of China’s self-declared desire for reunification.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS, EVIDENCE AND FINDINGS
I accept the identity of the applicants as they have claimed, and I find that Taiwan is the receiving country for each of them.
Goods missing from the first-named applicant’s place of employment
I do not accept that the first-named applicant was blamed for goods that went missing from his place of employment in Taiwan.
First, and most significantly, the first-named applicant’s evidence about the missing goods is inconsistent. In oral evidence to me, he described working in a furniture factory that also leases storage space. In early 2015, furniture went missing from the warehouse. Specifically, he says that sofas, chairs and tables went missing and that he was blamed for their disappearance. However, his oral evidence during the first hearing is that he was accused of stealing boxes of cigarettes imported from Japan. He gave detailed evidence about 14 or 15 boxes going missing. Each box was worth around TWD40,000 - 50,000 because it contained a number of cigarette cartoons inside. When asked if he remembered saying that boxes of cigarettes went missing during his first hearing, he replied words to the effect of ‘I think so’. When asked to explain the inconsistency, he said that he remembered incorrectly when giving his evidence to me. I clarified that this now means that he is saying that cigarettes went missing and not furniture, and he agreed. He is unable to explain why he said to me that not only did furniture go missing, but specifically sofas, tables and chairs, when if fact it was 14-15 boxes of cigarettes.
Whilst I accept that the passage of time may affect memory and recall, and that small discrepancies about minor details should not be picked apart, the products that he was blamed for stealing is a critical part of his narrative and claim. It is not a matter of failing to recall now how many boxes of cigarettes went missing, for example, but a complete failure to mention cigarettes at all. The boxes of cigarettes are now replaced with specific items of furniture, being sofas, tables and chairs. I place some weight upon this significant inconsistency.
I am also concerned about apparent inconsistencies in his evidence about who he was working for. His written Protection visa application says that he was working as an ‘operate worker’ for a furniture business named [Business 1] between October 2013 and March 2015. This is the time he claims to have been blamed for the missing goods. In his first hearing, he says he was employed by [Business 2] moving pallets of cigarettes in a warehouse. In evidence to me, he says he was employed by [Business 3], a furniture factory and warehouse. I do not accept that information in his Protection visa application is wrong because it was written by someone else, noting that, whilst his evidence to be employed in a furniture factory is inconsistent with his oral evidence at the first hearing, it is consistent with his oral evidence to me. The dates of his employment written in his visa application are also broadly consistent with his evidence to me, in which case I do not accept that that someone else who completed his visa application provided the correct dates and occupation but changed his employer’s name.
I also place weight on his return to Taiwan in September 2016 and the fact that he did not apply for a Protection visa in Australia until April 2017, more than two years after he first arrived. If he had fled Taiwan in 2015 because of a genuine threat to his safety, I do not accept that he would voluntarily return to Taiwan in 2016. I do not accept that it was necessary to return to Taiwan in order to sign some papers or documents. He gives no plausible or credible explanation why he needed to be in Taiwan in person to do this, or why it was necessary to do this if he genuinely felt under threat from his former employer. When asked to explain this further he declined to provide me with any further comments. I am not persuaded, for example, that he thought it would be safe because he went to his parents’ house about 30 minutes away from where he worked. I do not accept that he would take such an unnecessary risk of returning to Taiwan, and staying for a couple of weeks, just so he could complete some paperwork and see his parents again.
I also do not accept that he was unaware that he could apply for a Protection visa until some time in 2017. If he fled to Australia to escape the threat of harm, and was able to apply for and travel to Australia on a valid Working Holiday visa, I do not accept that he was ignorant of other Australian visas, such as a Protection visa.
I place weight upon his inconsistent evidence, his migration history and his delay in applying for a Protection visa once in Australia. The weight of these factors, individually and cumulatively, lead me to find that he was not blamed for products that went missing from a warehouse or storage location where he worked. It follows that I do not accept that he was beaten or threatened with harm because any products went missing. I do not accept that he was ordered to repay money to his employer to cover the cost of missing products, or that he or his family were harmed or threatened with harm if he did not.
I find that the first-named applicant does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future for any reason related to his prior employment in Taiwan.
Demand for money by the second-named applicant’s business partner
I do not accept that the second-named applicant lent money to, or invested money with, a business partner in Taiwan who then cheated her and demanded more money.
I find the second-named applicant’s evidence about her claimed involvement in a [business] to be inconsistent and implausible.
It is implausible, and I do not accept, that the second-named applicant entered into an investment with a woman named [Ms A] whom she had only know for two or three months. The second-named applicant has variously described the arrangement as a partnership, an investment or a shareholding, but is otherwise completely vague about the nature of her investment or agreement. Despite claiming to be given a five-page written agreement containing the terms of the investment, which she says to have skim read at the time, she is now unable to produce a copy of the written agreement or to describe in any plausible detail what it says. It is her own evidence that the amount of money she was investing was significant, in which case I do not accept that she was too young or naive to understand the importance of what she was entering into. As I suggested to her during the hearing, I also place some weight upon her level of education, which includes completing a [degree] at [a] University in Tao Yuan, in reaching this conclusion.
I am also concerned about significant inconsistencies in her evidence regarding her investment. In her first hearing, she says that she first invested TWD30,000 at the time that she signed the investment agreement. A short time later, [Ms A] then demanded an additional TWD200,00. Although not agreeing that she owed [Ms A] any more money, she paid [Ms A] TWD5,000 each month for three months (TWD15,000 in total) before deciding to flee Taiwan because [Ms A] was still demanding more money. The only other times she paid [Ms A] money is when the second-named applicant returned to Taiwan in 2017. In an attempt to settle her debt, she claims to have given [Ms A] TWD40,000 the first time they met and then another AUD10,000 (approximately TWD213,096) the second time they met.
In contrast, her oral evidence to me is that [Ms A] first asked her to invest TWD10,000 to 20,000. After thinking about it, the second-named applicant was not comfortable investing so much and only agreed to give TWD5,000. After receiving a return of TND1,000 a short while later, she read and then agreed to sign an investment document that [Ms A] gave her. Importantly, her evidence to me is that no more investment money was given to [Ms A] at that time. Instead, she claims that [Ms A] later demanded TWD200,000, an amount that she says she paid [Ms A] in one payment.
She has sought to explain these inconsistencies by suggesting that [Ms A] was automatically deducting money from her wages. However, she cannot explain why she continued working with, or for, [Ms A] for a number of months after [Ms A] started demanding money from her and was withholding her wages to pay a debt that she did not owe. Nor can she explain why she says she paid TWD200,000 in one single payment when she previously gave evidence of making multiple, but smaller, payments.
Additionally, I place weight upon the second-named applicant’s migration history and delay in applying for a Protection visa. Despite first arriving in Australia in September 2015, after she already claims to fear harm from [Ms A], the second-named applicant has returned to Taiwan in 2016 and 2017. Each time she claims to have met with [Ms A] in Taiwan to give her money. If the second-named applicant had a fear of living in Taiwan because of what [Ms A] might do to her, I do not accept that she would voluntarily return to Taiwan twice and each time meet with the person that she claims to fear harm from. I do not accept that the second-named applicant returned each time with the purposes of finally settling her debt, as this is inconsistent with her evidence that [Ms A] would not tell her how much money she owed or that the amount would change.
I also place weight upon the second-named applicant’s delay in applying for a Protection visa, noting that she first arrived in Australia in September 2015 but did not apply for a Protection visa until August 2017. Considering her previous migration history, involving multiple applications (including renewals) for Australian visas, I do not accept that she lacked an understanding of Australia’s Protection visa program or the ability to find out more about it if she was scared of returning to Taiwan. I do not accept that she first become aware of Protection visa in 2017 when a person named [name] offered to help her.
The weight of these matters, both individually and cumulatively, lead me to find that the second-named applicant did not enter into a business arrangement with [Ms A]. It follows that I do not accept that the applicant invested money with, or lent or gave any money to, [Ms A]. It also follows that I do not accept that [Ms A] demanded money from the second-named applicant and/or has threatened her, either implicitly or explicitly, with any harm.
I find that the second-named applicant does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future from [Ms A] and/or because of any business investment, loan or partnership that she claims to have entered into.
War between China and Taiwan
The applicants claim that they will be affected by war if China takes military action to re-unify with Taiwan. The first-named applicant claims that he will face forced military conscription, whilst both applicants claim they may be the victims of generalised violence if China attacks.
The applicants have provided a number of articles and newspaper reports in support of their claims, which I have also considered.
Considering all of the evidence in its totality, I do not accept that the first and/or second-named applicant face a real chance of serious harm or a real risk of significant harm, now or in the reasonably future.
I accept that China, particularly under the leadership of President Xi Jingping, seeks reunification with Taiwan. There is reporting that China seeks a peaceful reunification,[1] but there is also credible reporting that Taiwan’s opposition to this may eventually eventually cause China to attempt a military annexation. There is credible reporting of statements by President Xi to never renounce the use of force and to reserve the option of taking all measures necessary when discussing forced reunification or annexation of Taiwan. Reporting also suggests a constant state of preparedness in Taiwan, including in response to military drills and the firing of Chinese missiles or rockets.[2]
[1] ‘China and Taiwan are destined for ‘reunification’, Xi tell former president’, The Guardian online, published 10 April 2024 ( (accessed 6 August 2024).
[2] See various articles and reports providing by the applicants.
The article ‘The Ambitious Dragon, Beijing’s calculus for invading Taiwan by 2030’ suggests that China has a window of opportunity between 2027 to 2030 for the military annexation of Taiwan. This is predicated on a range of factors including President Xi’s ‘cult of personality’, China’s operational military capacity and domestic election cycles in China together with President’s advancing age.[3] The same article raises the counter considerations of the long term economic impact China would experience, as well as the serious geo-political impacts and increased regional tension that a military annexation would cause. As the article itself concludes, ‘only time will tell if China considers the strategic risk of forceful annexation too great or if President Xi will exercise his leadership as a rising global power and mobilise for an invasion of Taiwan’.
[3] Authored by Maj. Kyle Amonson and Capt. Dane Egli, Journal of Indo-Pacific Affairs, March-April 2023.

It is against this backdrop of country information that I consider whether the applicants face a real chance of serious harm or a real risk of significant harm. A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility.[4] It may be well below a 50 per cent chance, but it cannot be based on a mere assumption or speculation.[5] 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).[6]
[4] Chan v MIEA (1989) 169 CLR 379 at 389, 397 – 398 and 407.
[5] MIEA v Guo (1997) 191 CLR 559, at 572.
[6] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323).
The Department of Home Affairs’ ‘Policy: Refugee and humanitarian – Refugee Law Guidelines’ (the Refugee Law Guidelines) also discusses how an assessment of the reasonably foreseeable future may vary considerably depending on whether there is an armed conflict, or a violent and/or volatile political environment in the receiving country.[7] I have considered, and place some weight upon, this Guideline.
[7] Department of Home Affairs, ‘Policy: Refugee and humanitarian - Refugee Law Guidelines’, section 3.12.2, re-issued 27 November 2022 (Refugee Law Guidelines).
The geo-political differences and complexities between Russia and the Ukraine, on the one hand, and China and Taiwan on the other, make any direct comparison between these countries extremely limited. I do not accept that Russia’s attempted annexation of the Ukraine is a meaningful predictor of China’s action towards Taiwan.
If, and when, China may attempt a forced annexation of Taiwan is a question I do not need to definitively resolve. Considering the totality of the applicant’s evidence and the material before me, I am comfortably satisfied that the first and second-named applicant do not face a real chance of serious harm, or a real risk of significant harm, because of an armed conflict between China and Taiwan, now or in the reasonably foreseeable future. I am strengthened in this view by DFAT’s latest travel advice in relation to Taiwan, which is to ‘exercise normal safety precautions’.[8] It does not, for example, warn travellers to leave Taiwan or avoid travelling to Taiwan because of military instability.
[8] Taiwan Travel Advice & Safety | Smartraveller ( (updated 2 August 2024, still current at 7 August 2024) (accessed 7 August 2024).
For the same reasons as above, I find that the first-named applicant does not a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future because of forced conscription.
I have also considered the requirements of a well-founded fear of persecution in s 5J(1)(a) of the Act, and the exclusion criteria in s 36(2B)(c). I invited the applicants to comment on the application of these provisions during the hearing, and I have considered their response that the geography of Taiwan will make it hard to escape in the event of armed conflict occurring.
I am not satisfied that any harm experienced by the first or second-named applicant because of military action by China would be for an essential and significant reason in s 5J(1)(a) of the Act. That is, it would not be because of the applicants race, religion, nationality, particular social group and/or their political opinion. Accordingly, it would not be a well-founded fear of persecution within the meaning of the Act.
Similarly, it would be a real risk faced by the population of Taiwan generally and not by the applicants personally. Therefore, s 36(2B)(c) provides that there is taken not be a real risk that they will suffer significant harm.
Risk from generalised crime in Taiwan
The applicant’s claim to fear generalised harm in Taiwan. When asked to elaborate on this during the first hearing, the evidence was vague and generalised.
Country information points to an effective Taiwanese police force, and a low rate of crime. Violent crime rates are amongst the lowest in the world, for example. In a 2021 survey measuring public satisfaction with justice and crime prevention policies, more than 80 per cent of respondents were satisfied with the police in maintaining public safety.[9] Extensive CCTV coverage exists throughout Taiwan which acts as a deterrent to criminal activity and the streets are generally safe.[10]
[9] 'Freedom in the World 2023 Taiwan', Freedom House, July 2023 ( (accessed 7 August 2024); ‘Public Satisfaction with the Police is over 80% in 3 Consecutive Years Citizens Support Drug Enforcement, Fraud Prevention and Various Measures by the Police’, Ministry of Interior ( Taiwan), 25 February 2022
[10] ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 7 July 2023 ( (accessed 7 August 2024).
The lack of detailed claims and the strength of the country information leads me to find that the applicants do not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future because of generalised violence or street crime in Taiwan.
Summary and conclusion
I have considered the applicants claims individually and cumulatively and within the context of the accepted facts and evidence. I accept that the applicants are married and have a child together and I find that they will return to Taiwan as a family unit. I find that, either individually or together, the first-named and/or second-named applicant do not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future.
Accordingly, I am not satisfied that any of the applicants is a person in respect of whom Australia protection obligations. Therefore, the applicants do not satisfy the criteria in s 36(2)(a) or (aa) of the Act. It follows that they are also unable to satisfy the criteria 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.
Andrew Verduci
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.
…

[2024] AATA 4336

7 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction