1716178 (Refugee)

1716178 (Refugee) [2023] AATA 3605 (15 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716178
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Tamara Hamilton-Noy
DATE:15 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 August 2023 at 8:37am
CATCHWORDS
REFUGEE – protection visa – Taiwan – family owed money to underground bank – intimidated and threatened – police protection unavailable – gangsters used identity to purchase second hand car – forced to repay car – threatened with organ harvest – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 423A
Migration Regulations 1994 (Cth), 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 dependants.
STATEMENT OF DECISION AND REASONS
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [in] December 2012 and applied for the visa on 28 November 2016. He claimed that he had left Taiwan because his family owed money to underground banks and that people came to the home and threatened them. The applicant claimed to have moved around constantly and to have sought help from the police without success.
The applicant was not invited to attend an interview with the Department. A delegate of the Department found that the applicant is not a refugee as he does not fear harm for one of the reasons in s 5J(1)(a). The delegate found that the applicant is not owed complementary protection because, having regard to relevant country information, the applicant could obtain protection from the authorities such that there is not a real risk he would suffer significant harm in Taiwan.
A copy of the delegate’s decision was provided by the applicant to the Tribunal.
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.
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.
Evidence given at the Tribunal hearing
The applicant appeared before the Tribunal on 18 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant told the Tribunal that he thinks he was born in Taipei, Taiwan. He stated that he had been brought up in [location] and then the family went north to Taipei. He stated that, before leaving Taiwan, he was living with a friend for two to three years and was working as [an Occupation 1]. Before that, he had been in the army, and before that he had worked as [an Occupation 2] and as [an Occupation 3]. He had been in the army for one year at [age] years of age and had travelled to Australia in 2012, when he was [age] or [age] years of age.
The applicant stated that his family had lived in [Country 1] for a year when he was [age] years old and that they had gone ‘for a trip’, during which he did not attend school and he did ‘nothing’ for the year. The family then moved to [Country 2] where he attended school. He returned to Taiwan at [age] years of age and continued to attend school until he was [age], because he attended night school to finish his years in high school.
The applicant stated that his parents were both born in Taiwan and that he has a sister and brother, and he does not know where any of his family members are living as he last had contact with them one to two years after he arrived in Australia. As to his reasons for not retaining contact with family members, he stated, ‘lost contact’. He told the Tribunal that he does not remain in contact with anyone in Taiwan. Since arriving in Australia he has [worked], but has not worked for two years and has been living off his savings. He arrived in Australia on a working holiday visa and has also held a student visa, during which time he studied English training at an institute based in the city. Since arriving in Australia he has married another Taiwanese national who has a protection application pending before the Department.
The applicant stated that he had completed the written protection application himself and had not had any assistance completing the form. When asked by the Tribunal why he had left Taiwan, he stated that when he returned to Taiwan after [Country 1] and [Country 2], he realised his family owed a debt to others in the amount of [amount] TWD and maybe other debts, he is not sure. As to why he needed to leave Taiwan, he stated he was terrified and intimidated by debt collectors when he was [age] years of age. He stated his parents had borrowed money because of trading and their business and that the [amount] TWD they took was not supposed to be theirs, they took it and ran away to [Country 1]. As to where they obtained the [amount] TWD from, the applicant stated he is not sure, perhaps from private banks which are illegal.
The Tribunal asked whether anything had happened to the applicant which had caused him to leave Taiwan and he said that he was caught by debt collectors when he was working as [an Occupation 2] and was taken away. He was intimidated and threatened and they used his identification card to sign him up for a second-hand car. This happened when he was [age] years of age. He was not living at home at the time. As to why debt collectors would approach the applicant rather than his parents, he stated perhaps his parents were not around and he thinks his mother was not actually in Taiwan at the time. As to how they would know the applicant, he stated that they knew his father’s name and called him his father’s son.
The applicant stated that there was a further incident when he was [age] or [age], when he came across a group of gangsters and they told him he would have to repay whatever was owed by his father or they would take him somewhere. He stated that both incidents had happened in Taipei. As to whether anything else had happened before he left Taiwan, he stated that he thinks the two incidents are pretty severe. He added that in the second incident, they told him that if he couldn’t repay, they would harvest his organs. As to why the details of these two incidents had not been included in the written protection application, the applicant stated that he had written his claims in brief, he thinks because of translation issues.
The applicant stated that he had attended the police once, but the police were unable to trace the gangsters because they were young adults and after that the applicant didn’t feel it was safe to report to the police.
The Tribunal asked the applicant for details about the claimed first incident and he stated that it had happened on his way home from work as [an Occupation 2] in a [workplace], in [Taipei]. He was not living at home at the time and had been out of home for three to four years. He cannot remember the time of day it happened and he had not had any other contact with the lenders in the three to four years he had lived out of home. He thinks it was debt collectors who approached him and he has no idea how they know who he was, but they knew his name and his father’s name.
The applicant stated that the second incident happened two years later, when he was [age] years old. Nothing else happened before he left Taiwan at [age] years of age; he was in the army for a period of time and then worked as [an Occupation 1]. The Tribunal asked why, if nothing happened in that four year period, the applicant had needed to leave Taiwan and seek protection in Australia, to which he stated that they are still looking for him and he was moving around. The Tribunal observed that the applicant had earlier given evidence that he had lived with a friend for several years before leaving Taiwan, and he stated in response that he was in the military for 12 months and on his days off he went to his friend’s or his grandmother’s house. The Tribunal observed that the applicant had earlier stated he was living with a friend for two to three years before he left Taiwan, which was inconsistent with his later evidence that he had been moving around. The applicant stated in response that this was when he was in the army, the camps kept moving and if he happened to be in Taipei, he would spend his holidays with a friend.
The Tribunal observed that the applicant had earlier given evidence that he had left Taiwan because gangsters were still looking for him and he was moving around, but now seemed to be saying that he had moved around because of the army. The Tribunal observed it was having difficulty accepting the applicant’s stated reasons for having left Taiwan, to which he stated he was with friends for a while and then had to move. The two to three years he was referring to was when he was living in a basement and that accommodation was quite safe.
The Tribunal asked the applicant about when he claimed to have gone to the police. He stated that it was after the first incident, because he had been caught and intimidated. As to which police station he had attended, he stated he couldn’t remember. As to what details he could remember, he stated no, he can’t remember it well. The Tribunal observed that this caused the Tribunal some doubt about the claimed event, as it would expect the applicant to be able to remember some details of seeking help from the police. After a prolonged pause, the applicant stated that he could not remember the name of the police station. He had been injured as he had been slapped. When asked what injuries had been caused, he stated they had ‘just smacked’ him.
The applicant stated that he had made a statement at the police station and that one police officer had interviewed him, and he thinks he took a card from the police officer with their details. The Tribunal asked what had happened after that and the applicant stated that the gangsters then forced him to sign for a second-hand car and said that if he didn’t want trouble, to get the car signed up. He stated that about a week after the police station, the gangsters took him to a second-hand car dealer, he can’t remember where. He was asked to use his personal credit to purchase a second-hand car, and that two young men had gone with him to the dealer. The Tribunal observed that the car dealer must have realised something was not right, to which the applicant stated he is not sure, the dealer might be in the same group. As to what had been required of him at the dealer’s, he stated that he needed to sign up for a car with his credit and that they used his name for a car loan. The two men then took the car away and the applicant made repayments to [a] Bank for quite a while and his aunt then paid the rest. The repayments were over [amount]TWD and he paid over [amount] per month. He didn’t go to the police and they said to him that if he didn’t repay the loan, they would make trouble for him that was ‘more severe’.
The Tribunal observed that the applicant had earlier stated there were two incidents that had occurred and that this sounded like a third, significant incident. The applicant stated in response that this was part of the first incident. The Tribunal observed that that was different to what he had described earlier of having been stopped on his way home from his [Occupation 2] work. The applicant stated in response that there were two different groups of people and that this had happened in the same incident. The Tribunal asked the applicant to clarify that he was stating that the first incident had involved two young men taking him to a car dealer, to which he stated that it was the same group of people; he was riding home on his motorcycle and was pushed into a car and taken to a car dealer. The Tribunal observed that it was having difficulty accepting the applicant’s claims, as his evidence had changed during the hearing, to which the applicant stated, ‘the same group is the same’. As to why he had not raised these claims in his written protection application, the applicant stated that he had written briefly that he had been intimidated. The Tribunal observed that the written claims had been that people came to the applicant’s home and threatened him, and he stated that he thinks this should have been in the second incident. As to how long he had taken the car loan out before he left Taiwan, he stated it had happened when he was [age] years of age. The Tribunal observed that it was having difficulty accepting the applicant would not have approached the police if he had been forced to sign a car loan, to which he stated that they did things like this and he didn’t want any further trouble.
The applicant stated that, if he returns to Taiwan, he fears the threats made about having his organs harvested. The Tribunal observed that the Taiwanese police have taken action against gangs over a number of years, and are effective and well regarded, and asked why the applicant thought the police would not be able to assist him. The applicant stated that they will make trouble all the time and even if gangsters are caught, they are young lads. The applicant stated that there were no other reasons he had left Taiwan.
The Tribunal observed that the applicant had not left Taiwan for some four years after the last claimed incident, and that the delay in the applicant leaving Taiwan caused the Tribunal to doubt the applicant’s claimed reasons for having left Taiwan. The applicant stated in response that in the four to five years he was hiding and he later learned that Australia was an option.
The Tribunal observed that the applicant had arrived in Australia in December 2012 and had not claimed protection until November 2016, and that this delay also caused the Tribunal to doubt the claims raised by the applicant, on the basis that it would expect he would seek an avenue to remain in Australia if the claimed incidents had happened. The applicant stated in response that he learned about protection visas later on after arriving in Australia and then lodged his claim.
The Tribunal observed that the applicant had not included details of the two claimed incidents in his written application, which also caused doubt for the Tribunal about his claims, on the basis that the protection application was the applicant’s opportunity to tell the Department the reasons he had left Taiwan and why he fears returning to Taiwan and that, if threatened twice and forced to take out a car loan, the Tribunal would expect these reasons would have been raised in his written claims. The applicant stated in response that he had provided a ‘brief introduction’ of his claims and had tried to fit it into a paragraph.
The applicant told the Tribunal that he did not want to raise anything else about his claims.
Consideration of claims and evidence
The issue in this case is whether the applicant meets any of the alternative criterion in s 36(2)(a), (aa), (b) or (c), that is, whether he is a ‘refugee’ or is owed complementary protection, or is a member of the same family unit of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on a Taiwanese passport and has at all times claimed he is a citizen of Taiwan. The Tribunal accepts the applicant is a citizen of Taiwan and has assessed his claims against Taiwan as his country of nationality.
The applicant’s background
The Tribunal accepts the applicant is [an age]-year-old from Taiwan who has not had contact for some nine years with his parents, siblings or any other extended family members in Taiwan. The Tribunal accepts the applicant participated in compulsory military service in Taiwan and worked as [an Occupation 1], [Occupation 2] and [Occupation 3] in Taiwan. The Tribunal accepts the applicant has married another Taiwanese national in Australia, who has claimed but not been granted protection, and that he has worked [in] Australia.
Claims for protection
The Tribunal is mindful that it must adopt a reasonable approach in making its findings in regards to credibility, based on relevant and material facts. Where ‘the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[1] The benefit of the doubt should only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[2]
[1] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at para 196.
[2] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at para 204.
The Tribunal is also mindful of the difficulties faced by refugee applicants, including nervousness and anxiety in a Tribunal hearing and the use of interpreters. The Tribunal acknowledges there may be memory issues from the lapse of time and cultural issues which may affect how an applicant answers questions before the Tribunal. The Tribunal has had regard to its Guidelines on the Assessment of Credibility in the conduct of the hearing and in assessing the totality of the applicant’s evidence before it.

The Tribunal accepts the applicant completed his own written protection application without the assistance of anyone else. In assessing the applicant’s claims, the Tribunal has had regard to the reliance of the applicant on online translation assistance in preparing his written claims, in addition to the commentary above. In weighing up all of the evidence before it, the Tribunal has formed the conclusion that the applicant’s claims are lacking in credibility for the following reasons.
Firstly, the applicant raised claims at the Tribunal hearing that were not raised in his written protection application. The applicant raised for the first time at hearing that when he was [age] years of age, debt collectors had taken him away and used his identification for the purchase of a second-hand car, and that he had been forced to repay a car loan of over [amount] TWD per month. The applicant also claimed for the first time at hearing that, when he was [age] years of age, gangsters had said he had to repay a debt or his organs would be harvested. When asked why the applicant had not raised these claims in his written protection application, the applicant stated that it was because he had written his claims in brief.
The Tribunal notes that section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
The Tribunal was not persuaded that the explanation provided by the applicant explains why these details of his claims were not included in his written protection application. The Tribunal noted that the applicant provided some details of his claimed experiences at the hands of loan sharks which did not include the details outlined at the hearing. Even taking into account that the applicant did not have assistance in completing the protection application and his limited English skills, the Tribunal considered it unlikely that the applicant would not have outlined the forced repayments or threats to have his organs harvested as reasons for having left Taiwan. The Tribunal was not persuaded that the claims were not included because the applicant was brief in his claims. The Tribunal finds that the applicant’s failure to raise these claims in his written protection application causes doubt for the Tribunal about the credibility of his claimed reasons for having left Taiwan.
Secondly, the applicant’s evidence varied as it unfolded through the hearing. For example, the applicant first described to the Tribunal that when gangsters first approached him, he had gone to the police station to report the incident and, a week after he had been to the police, the gangsters had forced him to sign up for a second-hand car. In contrast, later in the hearing, when asked to clarify his claims, he gave evidence that he was riding home and was pushed into a car and taken to a second-hand car dealer. The differing evidence given by the applicant as to when he had been forced to sign up to a second-hand car causes further doubt for the Tribunal about the credibility of the applicant’s claims and causes further doubt for the Tribunal that the applicant left Taiwan for the reasons he claims.
Thirdly, the applicant described that he was [age] years of age when the claimed second incident occurred and he did not leave Taiwan until he was [age] years of age. The applicant stated, when asked about the reasons for his delay in leaving Taiwan, that he had been in the army and that he had been moving around as the gangsters were still looking for him. This was in contrast to his evidence, given early in the hearing, that he had been living with a friend for two to three years before he had left Taiwan. When asked about the differences in his evidence as to where he had been living before he left Taiwan, he then explained that he had moved while in the army as the camps kept moving. The Tribunal did not find this explanation to be persuasive, and the applicant’s explanation did not alleviate the concerns the Tribunal had about the overall credibility of the applicant’s claimed experiences in Taiwan.
Fourthly, the applicant arrived in Australia [in] December 2012 and did not claim protection until 28 November 2016. The Tribunal did not consider the applicant’s explanation to the Tribunal about his delay in claiming protection – that he learned about the visa after arriving in Australia and then claimed protection – to be plausible or consistent with his claimed fear of returning to Taiwan. The Tribunal would expect the applicant to have pursued an avenue to remain in Australia permanently at his earliest opportunity, if he had been threatened and abducted by gangsters and forced to enter into a loan for a second-hand car. The significant delay in claiming protection causes further doubt for the Tribunal about the credibility of the applicant’s claims and causes significant doubts for the Tribunal that the applicant fears returning to Taiwan for the reasons he claims.
For the above reasons, the Tribunal has not accepted the claims raised by the applicant. The Tribunal does not accept the applicant left Taiwan to avoid being hunted and persecuted by loan sharks. The Tribunal does not accept the applicant’s family borrowed money from an underground or private bank, that they owed debts to others or that they borrowed [amount] TWD or any other amounts. The Tribunal does not accept that people came to the applicant’s home and threatened to put his and his family’s lives in danger if they didn’t clear a debt, or that the applicant and his family moved but were found by anyone they owed money to.
For the same reasons, the Tribunal does not accept the applicant was intimidated by debt collectors at [age] years of age, or that he was caught by debt collectors when working as [an Occupation 2] or that he was taken away by debt collectors or intimidated or threatened. The Tribunal does not accept that debt collectors or gangsters or anyone else threatened the applicant that he needed to repay a debt owed by his father or that he would be taken somewhere or that his organs would be harvested. The Tribunal does not accept that debt collectors or anyone else used the applicant’s identification to sign up for a second-hand car, or that the applicant was taken to a second-hand car dealer and made to apply for a car by two young men, or that he was required to make any repayments on a car loan that had been forced upon him. The Tribunal does not accept that these claimed events occurred either after the applicant was stopped on his way home from work, or one week later after being threatened and having approached police. The Tribunal does not accept the applicant tried to seek help from police after being slapped by debt collectors or anyone else or that he made a police report.
As the Tribunal does not accept that the claimed events occurred, the Tribunal does not accept that the applicant is at risk of harm from debt collectors, loan sharks, gangsters, or anyone associated with a private or underground bank in Taiwan, or for any other reason. The Tribunal is not satisfied the applicant faces a real chance of persecution for any reason if he returns to Taiwan now or in the reasonably foreseeable future.
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).
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). As the Tribunal has not accepted the claimed events occurred, it follows that the Tribunal does not accept that the applicant faces a real risk of significant harm from debt collectors, loan sharks, gangsters, or anyone associated with a private or underground bank in Taiwan, or for any other reason.
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.
Tamara Hamilton-Noy
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.
…

[2023] AATA 3605

15 August 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies