1716258 (Refugee)

1716258 (Refugee) [2023] AATA 3203 (12 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716258
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Justin Meyer
DATE:12 July 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 July 2023 at 1:23pm
CATCHWORDS
REFUGEE – Protection visa – Taiwan – sexuality – a lesbian or homosexual woman – membership of a particular social group – homosexual – high level of tolerance in the community for members of the LGBT community – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 65, 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 dependants.
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 21 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Taiwan, applied for the visa on 7 September 2016. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a refugee as defined by section 5H(1) of the Act and thus not satisfied she was a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(a) of the Act. The delegate also found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Taiwan, there was a real risk the applicant would suffer significant harm as required by s36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 27 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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.
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 issue in this case is whether the applicant is a refugee as defined in s.5H(1) of the Act and meets s.36(2)(a) or meets the complementary protection criteria in s.36(2)(aa)
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant’s identity is established as a [age]-year-old female, as evidenced by a Taiwanese passport. Thus, there is passport evidence before the Department and the Tribunal confirming identity and nationality.
Claims and evidence
In her application to the department, the applicant claimed as follows (as summarised by the delegate):
·She graduated in 2007 and volunteered in the Taiwan Government Sector.
·Within a year, she started a relationship with a man at work and they became engaged to be married after one year together.
·After they broke up, the applicant resigned and moved to a new city where she worked as a [occupation].
·She entered into a relationship with a woman. Her colleagues gossiped about the applicant and would only talk to her for work purposes. The applicant left her job.
·The applicant’s parents were ashamed about the applicant’s same-sex relationship as were her relatives.
·The applicant fears that people will avoid her in Taiwan and she will be degraded. She also believes that relocation will be futile.
The claims in the hearing were as follows:
The applicant first came to Australia in October 2014 for a working holiday. She returned but came back to Australia for more working holiday employment. She has been picking vegetables.
She has a high school and vocational school education.
She voluntarily joined the army and she was there for four years. Later she worked as a [occupation] at a [workplace].
When she was working at the [workplace] she met a girl and they became a couple.
She described her own family as very religious. She said her mother was on occasions possessed by God. Her mother was insistent on the applicant “marrying a guy”. Her mother gave her a lot of stress.
I asked what religion the mother followed. The applicant said that her mother is a Taoist. I asked whether there was any particular belief in Taoism about same-sex relationships. The applicant said that Taiwan is a conservative country. She said the older generations were against same-sex relationships. The applicant said she did not know the mother was possessed by God was just using it as an excuse. She was giving the applicant a hard time and the applicant was very stressed, she repeated.
I asked what sort of things the mother would do or say. The mother said that if she did not marry a guy the whole family will die.
The mother would ring her when she was in Taipei. The applicant said she was originally from [City 1] in Taiwan but could not stand living there and she moved to Taipei. The parents have their own business in sales.
I asked the father’s attitude was towards same-sex relationships. The applicant said he just followed her mother.
The applicant has one brother. He has no particular attitude on same-sex relationships other than the belief that women should get married and have children.
The pressure became so much on the applicant that she decided to move to Australia. She feels different when she is here. The people are different as compared to those in Taiwan. It was such persons as Taiwanese men in their 40s and 50s who had an objection. The applicant said that at one point she wore a suit like a man and they would touch her breasts and asked her if she was a man or a woman. They would say that “you don’t have boobs”. She was discriminated against as a co-worker. Managers said there were complaints from customers. It made for a stressful situation.
At the moment the applicant works in a [workplace]. She is in regional Victoria. She is with her girlfriend who is the same person that she formed a relationship with in Taiwan. She named her partner. The partner has a protection visa application as well and it has not yet been considered by the department.
The Tribunal discussed the topic of spiritual possession or being possessed by God. The applicant described it as being God descending into a body and that there was a voice and words which talks against a person. Her mother talks “like an ancient person” on these occasions. The mother takes her to the worship room in the house and says that she must have kids. If she does not do so bad luck will descend upon the family she claims.
I asked what she thought of this behaviour and why her mother could not understand and accept. The applicant’s mother would threaten her and say that they will die if she does not follow her. I asked whether the applicant believed that all will die if she did not follow the mother. The applicant said she did not quite believe it. She said it was quite a conservative group of people. She said that the family would come around. There was no physical violence but there was mental and emotional stress.
I asked if the applicant had any psychological issues or conditions at any point. She said that she did when she lived in Taiwan and that she was suicidal. I asked if there was any way of avoiding her parents while living in Taiwan and asked why she could not live somewhere else and give no response to their communication. After leaving the army she lived in Taipei, but they still found her. Taipei and [City 1] are not far away – it could be reached in four hours or even in two hours by train.
I asked if her parents went to Taipei to visit her. The applicant said that her mother came and asked her to come back home and get married. She also asked if she had a boyfriend. They arrived uninvited and knocked on the door. I asked if the applicant had ever told her parents that she did not want to talk about the topic. When asked whether could cut off contact with her parents, the applicant said that she wanted to but she said they “have a way to find me.” There were particular concepts of parents and kids and their relationship. The concept was children have to look after their parents. She did not look after her parents it would be said, and then she would be asked why she was being so mean.
I discussed whether her parents have broken any laws by talking to her. I also mentioned the concepts of persecution and significant harm as described in the protection criteria. I enquired as to whether this could be described as persecution. I noted that people disapproved of her in some instances.
She said no one could protect her. She said people disapproved of her. The applicant said she would be denied work because of being the person that she was. She left the army, and then tried to find a job but was unsuccessful. She said stores said that they needed a “real” female.
I noted that she did end up with work in Taiwan. The applicant said that it was impossible. She first did not have to wear skirts and stockings in order to be employed. Later she had another manager in her workplace who refused to allow her to wear more masculine clothing.
The applicant said that she was discriminated against and this made her unable to stay.
I discussed with the applicant the US State Department human rights report of 2022 for Taiwan[1] noting that sexual harassment is illegal. It also discussed LGBT rights:
Violence against LGBTQI+ Persons: Reports of violence against lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) individuals were rare, and civil society organizations generally assessed the police response as adequate
…
Discrimination: The law stipulates employers cannot discriminate against job seekers or workers based on gender or sexual orientation and prohibits schools from discriminating against students based on their gender, gender traits, gender identity, or sexual orientation. Authorities generally enforced the law effectively
Involuntary or Coercive Medical or Psychological Practices Specifically Targeting LGBTQI+ Individuals: Conversion therapy practices by medical practitioners are prohibited. Practitioners faced potential revocation of their medical licenses and fines. Ministry of Health and Welfare principles for gender correction surgery on intersex minors direct that physicians should minimize potential harm by limiting surgery to urgent, necessary cases. Restrictions of Freedom of Expression, Association, or Peaceful Assembly: There were no reports of such restrictions for LGBTQI+ individuals or groups.
[1] 2022 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: TAIWAN
I observed that while she had experienced bad situations, I queried whether this amounted to persecution. She said that she will be discriminated against in work in Taiwan.
I noted same-sex marriage is legal in Taiwan. The applicant said that “the government cannot protect us.”
The applicant said that her girlfriend used to be married in Taiwan to a male. Her partner owes money to banks and loan sharks. She may have some other claims she said.
I asked if her partner could not go back to Taiwan because of her sexuality – the applicant said that her partner was bisexual and was discriminated against in the workplace as well.
He partner had been discriminated against while working in the hotel. There was disapproval from friends and colleagues. Her partner did not have close family as she did not grow up with her father who had been in jail. She is also no longer had contact with her mother.
In summary, the overall employment situation, discrimination and disapproval and stress were the issues that she meant she could not return to Taiwan.
Analysis and findings
The applicant gave a plausible account of being a lesbian or homosexual woman. I find this to be the case.
I accept that her parents and family, but particularly her mother, is strongly against her being homosexual or a lesbian, being so oriented, having such a sexual preference, being so attracted and expressing herself sexually in this way.
I find her mother has had dreams or visons or similar sessions with her daughter that might stem from certain Taoist or traditional religious beliefs. I accept that she speaks in a non-standard way during these sessions. I accept that her mother becomes very aggravated and insistent upon her daughter marrying a man and producing grandchildren and that this is condoned by other family.
I find that the experience is upsetting and stressful for the applicant.
Nonetheless the Tribunal does not find that there is a well-founded fear of persecution on these grounds. While discriminatory, the behaviour does not amount to persecution. There is a legal system in Taiwan that could effectively deal with matters, as described in the US State Department’s report:
Civil Judicial Procedures and Remedies There is an independent and impartial judiciary for civil matters. Administrative remedies are available in addition to judicial remedies for alleged wrongdoing, including human rights violations. Members of the public may petition the National Human Rights Commission to investigate incidents of alleged human rights violations and the commission may propose corrective measures for implementation by official agencies. [2]
[2] 2022 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: TAIWAN >
The applicant claimed in writing and in her oral evidence that she suffered discrimination and harm in Taiwan for reasons of her homosexuality. She also claims that she was rejected by her family. She claimed that she had suicidal thoughts.
I accept that she has been called names, told to dress in ways that she does not want, received unwanted touching and comments. I accept that it has been harder for her to gain employment and keep it. I accept that she has been relegated to work that was of lesser status than otherwise would be.
As discussed with the applicant, the Tribunal accepts that the applicant has been bullied, taunted due to a perception that she was a homosexual. Her parents rejected her.
The Tribunal considers that the applicant does not wish to return to Taiwan.
While it accepts that she is a lesbian and has had some bad and unhappy experiences in Taiwan it does not accept that her reluctance to return is because she fears harm as a lesbian in Taiwan. The Tribunal finds that employment opportunities are still freely available[3] and that the applicant has lived away from the influences of her parents and if such influences might return she would have access to a legal system that would prevent, or at least address, harassment.
[3] For example, the current unemployment rate in Taiwan is 3.5%
The harm faced is not serious harm to the mind of the Tribunal and the Tribunal also finds that the country situation is such that acting with impunity is not commonplace and that there are legal protections and rights.
Country information reveals that Taiwan, while by no means without blemish, has a good record on LGBTI rights.
In July 2018 the Taiwan News noted that Taiwan was Asia’s most LGBT friendly destination[4]. In expressing this conclusion it noted that Taiwan;
·     Is the first country in Asia to approve same-sex marriage.
·     Is home to the largest Gay Pride celebration in Asia.
·     Has a long and rich culture of making LGBT themed movies and that Taiwan hosts the Taiwan International Queer Film Festival.
·     Has a large number of LGBT advocacy groups in Taiwan including the highly influential Taiwan Tongzhi Hotline Association which provides support, education and counselling for the LBGT community and family members.
·     Most Taiwanese cities boast LGBT-friendly bars and nightclubs. Taipei has biggest gay scene can be found including the Red House which is a cultural hub and houses more than 25 LGBT bars, restaurants and nightclubs.
·     Has the first Chinese language LGBT bookstore.
[4] >
Accordingly and taking all of the above into account, and assessing her circumstances singularly and on a cumulative basis, the Tribunal is not satisfied that there are substantial grounds for believing the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of her membership of a particular social group, that is as a homosexual, or for any of the other reasons set out in s.5J(1)(a) of the Act.
Does the applicant meet the complementary protection criterion?
The Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Taiwan.

The Tribunal accepts that the applicant identifies as a lesbian and would continue to live openly as a lesbian if she returned to Taiwan.
There are no laws criminalising homosexual activity in Taiwan and the country information indicates there is a high level of tolerance in the community for members of the LGBT community. The Tribunal does not accept that the applicant will face the death penalty, arbitrary deprivation of life or torture for reasons of her homosexuality.
As set out above the Tribunal accepts that the applicant was bullied and harassed. However, taking into account the findings and country information set out above, the Tribunal does not accept that the applicant will face significant harm if she is removed from Australia to Taiwan. Taiwan has legislated to eliminate educational and workplace discrimination, there are significant legal protections against discrimination and there are a good number of Taiwanese LGBT groups which would provide support and assistance to the applicant in the event of any unfavourable treatment. The country information indicates a high level of acceptance of the LGBT community and members of the LGBT community live openly as homosexuals and socialise in various venues. The Tribunal does not accept that the applicant will face cruel or inhuman treatment or punishment or degrading treatment or punishment on her return to Taiwan.
Having considered the applicant’s circumstances singularly and on a cumulative basis the Tribunal is not satisfied that there are 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 she will suffer significant harm.
Conclusion
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Justin Meyer
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.
…

- :~:text=In%20May%202023%2C%20the%20unemployment,in%202022%20was%203.67%20percent.

[2023] AATA 3203

12 July 2023

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