1716942 (Refugee)

1716942 (Refugee) [2020] AATA 823 (30 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1716942
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Meredith Jackson
DATE:30 March 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 March 2020 at 10:44am

CATCHWORDS
REFUGEE – protection visa – Taiwan – non-appearance before the Tribunal – SMS reminders failed to deliver – racism – tension between the opposing pan-green and pan-blue coalitions – Taiwan independence movement – tension in cross-strait relationships – delay in applying for protection – overstayed a previous visa – claims lack detail and unsupported by evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 (the Act).

2. The applicant who claims to be a citizen of Taiwan applied for the visa on 27 April 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.

3. Her written claims, stated in summary, express a concern that, if she were to return to Taiwan now or in the reasonably foreseeable future, she would be beaten, injured or killed because racism is a prevalent threat in Taiwan and tensions between political factions in the national independence movement apply in all parts of the country.

4. The delegate refused to grant the visa on 7 July 2017 on the basis that the applicant does not have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and she does not face a real risk of significant harm if she returns to Taiwan. Therefore Australia’s protection obligations are not invoked. On 3 August 2017, the applicant applied for review of the protection visa refusal decision.

5. The applicant provided a copy of the visa refusal decision to the Tribunal with her application for review.

6. On 20 February 2020, the Tribunal wrote to the applicant at her provided email address advising that it had considered the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a video hearing scheduled for 16 March 2020, advising her that if she did not attend the hearing; did not provide a convincing medical reason for not being able to attend the hearing; and was not granted an adjournment, the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before it.

7. The Tribunal sent SMS reminders to the applicant’s provided telephone number about the hearing five days and one business day prior to the hearing. The Tribunal was notified that the hearing reminders failed to deliver.

8. No response was received to the Tribunal’s correspondence of 20 February 2020 and the applicant did not appear at the scheduled review hearing. No information regarding the applicant’s non-appearance has been provided to the Tribunal. The Tribunal is satisfied the applicant was notified of the review hearing by the aforementioned correspondence and accordingly that she was invited to appear in accordance with the statutory requirements. In these circumstances, pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

9. For the following reasons, the Tribunal has concluded that the 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 (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

Country of reference

According to the protection visa application, the applicant claims to be a citizen of the Republic of China (Taiwan). Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Republic of China (Taiwan) national and Taiwan is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations under s.36(3).

Issues

The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Taiwan, there is a real risk she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Documentary evidence before the Tribunal

The Tribunal has before it the Department and Tribunal files relating to the applicant. Information including, but not limited to, the following is contained in those files:
a.the applicant’s protection visa application forms submitted on 27 April 2016 and an extract from her passport;
b.the Departmental delegate’s visa refusal decision dated 7 July 2017 (a copy of which was provided to the Tribunal by the applicant);
c.the application for review submitted on 3 August 2017; and
d.Departmental administrative records.

Claims for protection

The applicant’s written claims for protection are summarised as follows:
a.She left Taiwan because of the Taiwan independence movement, which at the time of her application, the People’s Republic of China opposed, resulting in a military confrontation between Taiwan and Mainland China.
b.The new president of Taiwan is a member of the pan-green coalition that supports the movement; whereas the supporters of another coalition, the pan-blue coalition, opposes the movement and “the mainlanders” always have different opinions against independence; they see each other as enemies and can kill each other easily;
c.As a lover of peace, she is looking for a better life and happiness, and wants Australia to give her hope for the oppressed people such as herself;
d.If she returns to her country, she will “get beaten, injured or killed because racism is a prevalent threat in Taiwan”;
e.She cannot move to another part of her country because the supporters of the two coalitions are distributed throughout the country.

Analysis and findings

The Tribunal has considered each of the applicant’s claims for protection without the benefit of a hearing, at which it could have explored her claims and established a more detailed basis for assessment. In the absence of a hearing, Tribunal has had regard to the material before it, including the broad statements provided by the applicant in her visa application.
The Tribunal has also taken into account country information, extracted below, about the state of relations between the Republic of China (Taiwan) and the People’s Republic of China in 2016 and since.
The applicant claims that she is at risk of harm from violent racial tension between opposing coalitions in Taiwan and from confrontation between her country and mainland China. In her application for the visa the applicant stated that she left Taiwan because of the Taiwan independence movement, which at the time of her application, the People’s Republic of China opposed, and this resulted in a military confrontation between Taiwan and mainland China. The Tribunal has not had the opportunity to question the applicant about this aspect of her claims. The applicant did not supply in support of her claims, any country information regarding the situation in Taiwan either at the time of her departure, at the time of her application, or since.
The applicant claims that people on either side of the so-called blue-green political divide in Taiwan are racially motivated and are capable of killing each other, and states that she will be beaten, injured or killed as part of the tensions if she returns home. In other words, she claims that racial tensions in Taiwan are capable of creating a circumstance in which she might be significantly harmed or killed.
The Tribunal notes that the applicant’s claims were not supported by any detailed reasoning or analysis of her own, or that of any other parties, and the applicant offered no explanation as to why the national tensions she perceives would necessarily impact violently upon her as an individual rather than the entire population.
Her claims are very brief, and provide no substantive information regarding her personal circumstances in her home country. They reference general concerns and include that she is a lover of peace and wishes to live in happiness. She expresses no political opinions that may have influenced her perceptions of her safety in her home country if she returns. She does not provide information, for example, regarding any direct involvement with either of the broad coalitions in Taiwan that she refers to; nor information about her personal racial identification and any related risk profile. She provides no information regarding any personal history of involvement in, or personal circumstances arising from, any of the independence protests that have occurred in Taiwan, and she describes no past harms she has experienced personally.
The Tribunal has considered the applicant’s claims in relation to her racial identity but as it has no information before it about her personal circumstances in Taiwan or any history of previous violence she might have suffered for any reason including her personal racial identification, the Tribunal is not persuaded that her claims regarding racial tensions impacting on her personally are made out.
The Tribunal accepts that the applicant wishes to live in peace and happiness along with others whom she claims are in similar circumstances.
The Tribunal notes that s.36(2B) provides that that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’: s.36(2B)(c).
The Tribunal has considered whether the applicant is implying, in the brief and broad statements in her application, that her racial identity is a risk factor for her if she returns to Taiwan. However as stated above, the Tribunal does not have before it sufficient information to establish what her racial identity is.
Based on the information before it, the Tribunal does not find that the applicant’s racial identity places her at risk of serious or significant harm if she returns to Taiwan, or that race-based tension in Taiwan means she will be beaten, injured or killed if she returns. The Tribunal is therefore not satisfied that she will be persecuted because of her race if she returns.
The applicant refers to the “new President of Taiwan” as being a member of the pan-green coalition that supports the independence movement. This is taken to infer that conditions in Taiwan may deteriorate under the elected President. She provides no information as to how this might unfold, and provides no appraisal of how conditions have evolved since the time of her departure from Taiwan or time of her application for protection, or how those current conditions may impact upon her personally. She has not taken the opportunity to describe whether she considers there has been any reform or change in Taiwan since she left for Australia in 2013 nor described what has happened since.

Country information

The Tribunal notes relevant DFAT country information, in its most recent Taiwan country brief[1], states in relation to Taiwan’s recent political development and relationship with the PRC:
[1] Country Brief: Taiwan, Department of Foreign Affairs and Trade; Parties
There are two main political parties in Taiwan. The modern Kuomintang (KMT) evolved from the former military government Nationalist Party. The KMT’s support base is in northern Taiwan, where the Nationalist government and its supporters from the mainland established their new capital, Taipei. The KMT generally supports a conservative free-market agenda, although it maintains support for some state intervention in important sectors of the economy through a number of large state-owned enterprises established under its leadership. The KMT was in power most recently from 2008-2016 under Ma Ying-jeou, securing a number of cross-Strait agreements, including the overarching Economic Cooperation Framework Agreement (ECFA).
The pro-democracy movement of the 1970s and 80s gave rise to the Democratic Progressive Party (DPP). The DPP’s support base is in southern Taiwan, particularly among the “Taiwanese” communities established prior to the arrival of the “mainlanders” in 1949 some within the DPP support Taiwan’s de jure independence from China. The DPP held power from 2000 to 2008 under President Chen Shui-bian, whose leanings towards independence heightened tensions with China. The DPP’s broader policy agenda is generally socially progressive, focusing on issues such as income inequality, the environment, and economic and trade diversification.
Negotiation of a trade in services agreement with China proved controversial with many, particularly younger voters apprehensive that Taiwan was becoming too economically dependent on the mainland. In March 2014, students and NGOs led large street demonstrations, dubbed the Sunflower Movement, and occupied the chamber of the Legislative Yuan for 23 days. The social activism inspired by the Sunflower Movement led to the establishment of a number of new political parties, such as the New Power Party.
Parliamentary (Legislative Yuan) and presidential elections were held together on 16 January 2016. After eight years of KMT rule, Dr Tsai Ing-wen of the DPP was elected as Taiwan’s first female president and the DPP secured a majority in the Legislative Yuan for the first time.
On 11 January 2020, Dr Tsai Ing-wen was re-elected securing 57.13 per cent of the popular vote. Her opponents from the KMT, Kaohsiung Mayor Han Kuo-yu, and People’s First Party (PFP) leader, James Soong, secured 38.9 per cent and 4 per cent of the vote respectively. Although the DPP lost seven, it will continue to hold a majority (61 seats) in the 113 seat legislature.
Cross-Strait Relations and International Recognition
Hostilities between the Nationalists (who fled to Taipei) and the Communists (who remained on the mainland) never formally ended. As a result, relations between the two sides of the Taiwan Strait have never been established on an official basis. Nevertheless, strong economic connections across the Strait have gradually been forged, including through a range of agreements in recent decades. Taiwan business investment played an important role in China’s opening up, and direct transport and tourism links have been established.
Relations across the Strait are principally managed via semi-official agencies: Taiwan's Straits Exchange Foundation (SEF) and China's Association for Relations across the Taiwan Strait (ARATS). A meeting of both sides in 1992 took place on the understanding that each side could verbally state its opinion of “one China”; for Taiwan, this meant the Republic of China, and for China, this meant the People’s Republic of China. This understanding was later referred to as the ‘1992 Consensus’.
Cross-Strait relations have become more difficult since the elections in January 2016. Beijing has criticised Tsai Ing-wen for failing to endorse the ‘1992 Consensus’ and has suspended official and semi-official channels of communication.
1. The Tribunal also notes country information provided by Freedom House in its report Freedom in the World 2019. Its Overview section indicates:
  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. Ongoing concerns include Chinese efforts to influence policymaking, the media, and Taiwan’s democratic infrastructure; foreign migrant workers’ vulnerability to exploitation; and disputes over the rights of LGBT (lesbian, gay, bisexual, and transgender) people.
1. The Tribunal accepts there is ongoing tension in cross-strait relationships between Taiwan and mainland China. However the Tribunal is considering whether this tension has the capacity to impact the applicant in a personal sense for her (undeclared) racial identity. The Freedom House report indicates, when rating Taiwan 3 out of 4 for its question:
  Are individuals free to express their personal views on political or other sensitive topics without fear of surveillance or retribution? The report states:
  The constitution provides for the equality of all citizens before the law, although indigenous people continue to face social and economic discrimination, leading to high unemployment, lower wages, and barriers to education and social services. In 2016,President Tsai offered the government’s first formal apology to indigenous people for centuries of injustice, while launching a commission to investigate historical mistreatment.
2. The United States Department of State Report: Taiwan 2018 Human Rights Report states the following that the Tribunal considers relevant in the applicant’s case:
  In 2016, voters elected President Tsai Ing-wen of the Democratic Progressive Party to a four-year term in an election considered free and fair.
  There were no reports of egregious human rights abuses.
  Following President Tsai’s 2016 formal apology to Taiwan’s indigenous peoples for past injustices, her office set up an Indigenous Historical Justice and Transitional Justice Commission led by the president.
3. The Tribunal does not have sufficient information before it to clarify whether the relationships and reforms described above in country information above are directly relevant to the applicant’s personal circumstances. On the basis of the country information, however, it is satisfied that reforms, including in relation to ethnicity, have been evident in Taiwan since a point prior to when the applicant left for Australia and that Taiwan is a relatively stable democracy.
4. The Tribunal does not find that political conditions in Taiwan are likely to deteriorate and adversely affect the applicant as an individual in the manner she claims, and therefore, does not accept that she faces a real chance of serious harm or real risk of significant harm if she returns to Taiwan because of country conditions she infers exist. On the evidence before it, the Tribunal instead considers this to be a remote or far-fetched possibility.
5. The applicant claims that she cannot move to another part of the country because the circumstances she describes are prevalent throughout the country. The Tribunal notes that DFAT country information states that Taiwan is a relatively small nation of 36,000 square kilometres in land area and is populated by 23.6 million people[2]. The Tribunal accepts the applicant’s claim that largely similar social conditions in Taiwan present in all areas.
  [2] Department of Foreign Affairs and Trade, Taiwan Fact Sheet, February 2020.
6. That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
7. The Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
  As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
8. The Tribunal has considered separately and as a whole, the limited claims and evidence provided by the applicant in her visa application. Had she attended the hearing, the Tribunal would have sought clarifying information from the applicant about the particulars of the claims, and asked why they would impact upon her as an individual and pose a risk to her safety. It would have sought to clarify and place in context the brief and broad statements she made in her visa application. The Tribunal would also have raised with the applicant the country information, and explored whether the country’s social and political situation has evolved since the time of her application, and if so, whether it would have the capacity to alleviate her concerns or compound them. On the evidence before it, including the country information extracted earlier, the Tribunal does not find that the applicant’s claim that conditions and tensions in her country mean she faces a real chance of serious harm or real risk of significant harm if she returns to Taiwan, is made out.
9. The Tribunal has not had had the benefit of being able to ask the applicant about her immigration history and the reason for her delay in making a claim for protection. However the applicant provided the delegate’s decision, which details that history.
10. The delegate’s decision states that the applicant on a Working Holiday (TZ-417) visa in July 2013. She was granted a second Working Holiday visa on 1 September 2014. The Tribunal notes that in her protection visa application of 27 April 2016, the applicant stated that she overstayed her (second working holiday) visa from the date of its expiry, 26 September 2015. In her application, she declared her professional background as [Profession 1], and her occupation as unemployed. The Tribunal has not had the opportunity to ask the applicant why she overstayed her visa or about her skills and employability in Taiwan.
11. The Tribunal notes however that the applicant did delay her claim for protection for two and a half years following her arrival in Australia in July 2013. In the absence of a hearing, the Tribunal was not able to clarify why the applicant delayed the claim. On the basis of the information before it, the Tribunal concludes that the long delay indicates that the applicant did not prioritise seeking protection, and remained in Australia for a period in excess of the period of stay in two working holiday visas and in total, and took two and a half years to apply for protection. The Tribunal is unable to determine why, if the applicant was concerned about the situation in Taiwan at the time of her departure as claimed, she did not seek to secure protection at the first opportunity after she arrived, and concludes there is a reasonable probability that she did not do so for the reason that she did not genuinely fear what may happen if she returned.
12. As the applicant failed to attend the hearing, the Tribunal did not have the opportunity to ask questions concerning any of the aforementioned matters, and the Tribunal is not satisfied as to the veracity of the applicant’s claims because the claims lack detail and are unsupported by evidence and country information provided by the applicant in support of them.
Refugee finding
1. Based on the available evidence, and having carefully considered that evidence, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). The Tribunal finds her fear of persecution is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s.5H.
Complementary protection finding
1. 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). Based on the available evidence including country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, that there is a real risk that she will suffer significant harm.
Overall finding
1. 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).
2. 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
1. The Tribunal affirms the decision not to grant the applicant a protection visa.
Meredith Jackson
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.
…
1. Protection visas – criteria provided for by this Act
…
1. A criterion for a protection visa is that the applicant for the visa is:
  (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
  (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
  (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
  (i)is mentioned in paragraph (a); and
  (ii)holds a protection visa of the same class as that applied for by the applicant; or
  (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
  (i)is mentioned in paragraph (aa); and
  (ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 823

30 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

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