1716450 (Refugee)
[2023] AATA 3161
•22 June 2023
1716450 (Refugee) [2023] AATA 3161 (22 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1716450
COUNTRY OF REFERENCE: Taiwan
MEMBER:Justin Meyer
DATE:22 June 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 22 June 2023 at 6:17pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – forcible acquisition of property by developer – insufficient compensation – wife imprisoned and mistreated – did not attend hearing – insufficient evidence – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 425, 499
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Taiwan, applied for the visa on 2 February 2016. The delegate refused to grant the visa, noting that the definition in subsection (which reads 5J(1)(a), a well-founded fear of persecution) ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. A person who has a well-founded fear of persecution for other reasons is not a refugee within the terms of the Migration Act. The applicant had not claimed to fear harm in Taiwan because of his race, religion, nationality, political opinion or as a member of particular social group. There was no information to suggest the applicant would be targeted on his return to Taiwan for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act.
The delegate found that the applicant would receive protection from the Taiwanese police and judiciary in Taiwan against any threats he faces from moneylenders or gangs in Taiwan to reduce any risk the applicant faces from this criminal entity to less than a real one. The applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm as outlined in paragraph 36{2B)(b) of the Act. Therefore, there was no real risk that the applicant will suffer significant harm and the applicant is not a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act.
Waived right to hearing
If the Tribunal invites an applicant to a hearing, and he or she subsequently consents to the Tribunal deciding the review without appearing before it, the obligation to invite the applicant to appear ceases pursuant to s 425(2)(b):
The Tribunal wrote to the applicant on 9 June 2023 inviting him to appear at a hearing on 29 June 2023 per 425(1).
In this case the applicants indicated on the Tribunal's hearing response form on 15 June 2023 providing written consent for the Tribunal to make a decision without a hearing: in these terms: “No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear.”
The Tribunal is satisfied that the necessary consent has been given under s 425(2)(b) of the Act and that, pursuant to s. 425(3) the applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal
In these circumstances, the Tribunal has proceeded to make a decision. At the outset however, it is appropriate to highlight that a decision maker is not required to make the applicant's case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
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 issues in this case are whether the applicant has a well-founded fear of being persecuted in Taiwan for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan there is a real risk that he will suffer significant harm.
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 male, as evidenced by a Taiwan passport. Thus, there is passport evidence before the Department and the Tribunal confirming identity and nationality.
Claims and evidence
In his application to the department, the applicant claimed as follows, as siuammrised by the delegate:
·his property was forcibly acquired by the government and less than market value compensation offered which he rejected.
·His wife led other affected property owners to protest the just compensation been offered but they were dispersed by gangsters hired by the government officials.
·The police sided with the corrupt government officials and gangsters.
·Fearing for his life he decided to return to Taiwan.
His claims in detail to the department were as follows (as submitted):
My family got unfair treatment in the demolition, and threatened by gangsters. My wife did not give up our rights, she revealed the connection between the gangsters and officials, and asked the Government to investigate thoroughly. Then officials bribed and my wife was sent to the [City 1] Women Prison, where she suffered brutal persecution and became crippled. She was developed a mental disorder.
In early November 2015, my family received notice that [Developer 1] planned to make demolition modifications to my home area. This should be a good news, but my family was not happy. Because the compensation was only NTS 2.6 million to us, and in similar cases, we should get at least NTS 4 million.
By asking some friends and neighbors, we knew this demolition involved more than 100 families, and the compensation payments were much lower than the market price. [Developer 1] was a newly established company. It was said the officials of [City 1] Government invested in [Developer 1], and [Developer 1] had gangsters background, so no one dared to say no to the developer.
On 21 December 2015, my wife led more than 50 households to submit an open letter to the [City 1] Government, demanding [Developer 1] to pay market price, and calling for the establishment of an independent panel to oversee the demolition. However, the corrupted Government did not help residents, but used by the gangsters and made brutal persecution to us.
On 4 January 2016, about 19 police officials in three vans surrounded my home. Nobody was home at the time, and the police broke in and ransacked my home. At the night, when my wife came back, she was taken to Police Department by the police. [Officer A] handcuffed her hands behind her back and forced her to sit on the cement floor with her legs straight. [Officer A] beat her head, face and the rest of her body with a broom until the broom fell apart. Then she was sent to a detention center, where she was shackled by [Officer B]. Another officer, [Officer C], shocked her with electric batons on her head, neck, hands and legs because she refused to provide the name list of other protesters. She was handcuffed to the stairs afterward.
My Wife started hunger strike in jail to protest. On 7 January 2016, the police handcuffed her to a steel chair and ordered inmate to force-feed her. Although she kept vomiting, officer slapped her hard. Then she was sent to the detention center’s clinic room. She was forcibly injected with unknown drugs and force-fed for three days.
During that time, officer handcuffed her hands to the rails on both sides of the bed, and then beat her with wooden sticks. Her buttock and legs were badly bruised after the beating, and for a long time she was unable to turn over while lying down. Other residents who attended the protest were also arrested. On the evening of 6 January 2016, when [Ms. D] and her daughter (a middle school student) were sleeping, several officers entered her home after breaking a window. She was dragged into a police car and taken to the police station. Her daughter shook from fear. After she arrived at the police station, [Director E], and several officers ransacked [Ms. D]’s home a second time. They did not find any cash, so they hauled away her small safe.
They broke into the safe at the police station but did not find any cash there either. [Director E] then searched her body. Later, [Director E] sent [Ms. D] to the [City 1] Detention Center. On the way, the police threaten to bury her. At the detention center, [Ms. D] went on a hunger strike to protest the persecution, but police handcuffed her to a chair and ordered inmates to force-feed her. She lost consciousness and became incontinent from the torture.
On 14 January 2016, my relatives visited my wife. My wife asked them to tell me that I must not return to Taiwan. [City 1] Government officials wanted to kill us, they wanted to warn other residents to participate. Dear Australia Government, I don’t know what to do, please save my wife and me!
Many thanks.
[Applicant name]
03/02/2016There were no other submissions. There was no departmental interview.
I am satisfied that the applicant had notice that the Tribunal did not have sufficient information to make a favourable decision on the information supplied by the applicant, and that the applicant has had a reasonable opportunity to provide any further information to the Tribunal in support of his claims and has not done so.
I am satisfied as to the applicant’s identity and the validity of his identity documents. I find that the applicant has Taiwanese nationality, and that the receiving country for the applicant on this review is Taiwan.
Is the applicant a refugee under the Act?
The applicant’s claimed fear of persecution by a gangster(s) who harmed him (and his wife) does not appear to fall within any of the grounds in s 5J(1)(a) of the Act, namely by reason of race, religion, nationality, membership of a particular social group or political opinion.
The information presented by the applicant about gangsters and abetted by officials is lacking in detail. The applicant has provided few details about how he or family members were harmed the gangster or gangs. It is not evident where the harm occurred, where the building or buildings in question are, how they were acquired, whether it was a family home or another type of construction.
There is no other evidence to confirm that the claimed compensation amount was too low, or what the correct level would be.
Although by no means a requirement there is no corroboration of the claims. There are no documents or photographs to support the claims. There are no media reports for example. The is no evidence of a charge, arrest, raids or court document, other than the applicant writing that the events took place.
In the absence of further information, I am unable to determine if the applicant has suffered persecution in the past, or whether his claimed fear of persecution in the future falls within the grounds in grounds in s 5J(1)(a) of the Act.
I am also unable to determine whether the applicant might belong to a particular social group based on this information.
In light of the lack of sufficient information, I am not satisfied that there is a real chance that the applicant would be persecuted for any reason, if he returned to Taiwan, now or in the reasonably foreseeable future.
Country information
I note that there is no DFAT country information report on The Republic of China (Taiwan). Other relevant country information is as follows:
State protection and rule of law
Police Force Police are effective and the crime rate is low. Violent crime rates are among the lowest in the world and crime is generally low.[1] Excessive use of force by police is rare, and lawyers are allowed to monitor interrogations to prevent torture.[2] A 2021 independent survey measuring public satisfaction with justice and crime prevention policies shows that for the third consecutive year more than 80 percent of the respondents were satisfied with the police in maintaining public safety.[3] The Constitution prohibits arbitrary arrest and detention and this principle is generally observed by authorities.[4]
[1] ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021, 20220531165548
[2] 'Freedom in the World 2022 Taiwan', Freedom House, 9 June 2022, F3, 20220614105607
[3] ‘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, 20220601101451
[4] 'Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, p.2, 20220413103515; 'Freedom in the World 2022 Taiwan', Freedom House, 9 June 2022, F2, 20220614105607
Judicial system
Taiwan’s court system is free and fair. Courts are independent, fair and generally free of corruption.[5]All defendants are presumed innocent until proven guilty and have the right to a lawyer and to be present at trial.[6] The most recent data of the World Values Survey (2019) shows that 56 percent of respondents in Taiwan expressed at least “quite a lot” of confidence in the judiciary.[7] Nevertheless, large numbers of Taiwanese harbour long-standing and deep-seated mistrust in the effectiveness, political impartiality and fairness of the court system and judges.[8] Some Taiwanese feel that the judicial system is unfair in rulings related to high profile political cases and President Tsai highlighted judicial reform as one of the core policy goals of her administration in order to address popular mistrust in the country’s court system.[9] The government has committed to addressing some of these concerns and has made some progress on judicial reform.
[5] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729
[6] 'Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, p.4, 20220413103515 81 'BTI 2022 Country Report - Taiwan'
[7] , Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729 82 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729
[8] , Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729 82 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729
[9] , Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729 82 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729
, Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729 82 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729
Corruption
Corruption in Taiwan is low by international standards. Transparency International gave Taiwan a score of 68 out of a possible 100 in its 2021 Corruption Perceptions Index.[10] Petty corruption is uncommon and high-profile corruption in Taiwan’s bureaucracy is rare and usually involve politically nominated officials rather than civil servants.[11] An anti-corruption body was set up in 2011 and international sources assess that it effectively prosecutes corruption.[12] Whistle-blowers are protected by law.[13]
Crime
Taiwan has a low crime rate and one of the lowest violent crime rates worldwide. There is extensive CCTV coverage throughout Taiwan, which deters criminal activity and the streets are generally safe.[14] Violent crime rates are among the lowest in the world.[15] As in other countries, property crime and fraud offences are reported in Taiwan.[16] Drug offences are ‘increasing’ according to the US Department of State, but are punished severely, including for ‘soft drugs’ such as marijuana and the death penalty is applied to some drug crimes.[17]
Police actively seek out and prosecute organised criminals. Chinese organised crime gangs (triads) in Taiwan and are often linked to politics and are allegedly linked to pro-Beijing interests.[18]
The Organized Crime Prevention Act 2018 include a broad suite of offences including being a member of, financing, recruiting for or threatening a person in the name of an organised crime group.[19] By May 2021 police had arrested 161 suspected gang members this year, and similarly 259 including 25 major criminal figures were arrested in 2020.[20] Three hundred and fifty people were detained in a nationwide crackdown on organised criminals and loan sharks in May 2019.[21]More than 300 people were arrested in a similar 2018 crackdown.[22] In 2021, Taipei’s police commissioner acknowledged an increase in negative public perceptions in the ability of law enforcement authorities to contain organised crime and vowed to intensify police efforts by conducting more frequent operations.[23] The overall effectiveness of these measures is difficult to measure, however some sources from 2016 claim that at that point in time, over decades, the reach, discipline and effectiveness of organised crime has decreased and that these organisations are now generally unsophisticated.[24]
Prison Conditions
Prison conditions generally meet international standards. The US Department of State reported that prison and detention centre conditions did not raise human rights issues.[25] Prisons are subject to independent monitoring and prison authorities investigate alleged abuses.[26] Prisoners are expected to work in prison industries and are paid a small sum from which they can pay for some goods and services, which are supplemented with funds from their families.[27] One source claims that health facilities are basic and are unavailable to some prisoners who cannot pay.[28] In August 2021, the government issued an investigation report ordering Chiayi Prison to take corrective measures to ensure due process and basic rights for inmates suspected of violating prison rules.[29]
Taiwan’s vibrant and competitive democratic system has allowed three peaceful transfers of power between rival parties since 2000, and protections for civil liberties are generally robust. The news media are generally free, reflecting a diversity of views and reporting aggressively on government policies, though many outlets display strong party affiliation in their coverage.[30]
Summary
[10] 'Corruption Perceptions Index 2021', Transparency International, 24 January 2022, 20220125192959. Note, The score represents the perceived levels of public sector corruption in 180 countries/territories worldwide. The higher the score the less corrupt a country is perceived to be
[11] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.29, 20220224094729
[12] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.11, 20220224094729; 'Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, pp.9-10, 20220413103515 88 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.29, 20220224094729
[13] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.29, 20220224094729; 'Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, pp.9-10, 20220413103515 88 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.29, 20220224094729
[14] ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021, 20220531165548 90 ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021, 20220531165548
[15] ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021, 20220531165548 90 ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021, 20220531165548
[16] ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021, 20220531165548 90 ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021, 20220531165548
[17] ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021, 20220531165548 90 ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021, 20220531165548
[18] See e.g. 'Nice Democracy You’ve Got There. Be a Shame If Something Happened to It.', Foreign Policy, 18 June 2018, 20200610123303; 'Prosecutors charge ‘White Wolf,’ other CUPP members with illegal gains', Taipei Times, The,14 August 2019, 20190902143851; 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019,20200610130957
[19] ‘Organized Crime Prevention Act’, Government of Taiwan, 3 January 2018, arts 2, 3, 4, 6, 20200610132331
[20] ‘Law and Order: Taipei police commissioner reassures public on safety’, Taipei Times, 7 May 2021, 20210519090638
[21] 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019, 20200610130957
[22] ‘Raids and 310 arrests as Taiwan cracks down on criminal gangs ahead of elections’, Hong Kong Free Press, 4 May 2018, CXBB8A1DA30616
[23] ‘Law and Order: Taipei police commissioner reassures public on safety’, Taipei Times, 7 May 2021, 20210519090638
[24] Is Taiwan’s Organized Crime Receding or Going Deeper Underground?’, Tim Ferry, American Chamber of Commerce in Taipei, 24 May 2016, CIS38A80122174
[25] 'Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, p.2, 20220413103515
[26] Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, p.2, 20220413103515
[27] 'EXPERIENCE: Life Inside, Observing a Taiwan Prison Clinic', The News Lens, 13 September 2018, 20200610174117
[28] 'EXPERIENCE: Life Inside, Observing a Taiwan Prison Clinic', The News Lens, 13 September 2018, 20200610174117
[29] Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, p.2, 20220413103515
[30] type="1">
It is evident that there is a low crime, lower levels of corruption, and effective protection in the form of the justice and police system along a lively free speech environment. This would assist the applicant in any claimed subject matter that he has written of.
There is nothing in the country information that alters my conclusion that the lack of sufficient information leads to me to be not being satisfied that there is a real chance that the applicant would be persecuted for any reason, if returned to Taiwan, now or in the reasonably foreseeable future.
It follows that I am not satisfied that the applicant has a well-founded fear of persecution pursuant to s.5J(1) of the Act, and I am not satisfied that the applicant is a refugee under s 36(2)(a) of the Act.
Is the applicant entitled to complementary protection under the Act?
Having found that the applicant is not a refugee, I have considered whether the applicant is entitled to complementary protection under section 36(2)(aa) of the Act.
Based on my analysis of the evidence and findings above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that the applicant will suffer significant harm.
Is the applicant a member of a family unit?
The applicant does not make a claim based on membership of a family unit. As such, no family claims arise in this case.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Justin Meyer
MemberATTACHMENT - 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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Jurisdiction
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