1717566 (Refugee)

1717566 (Refugee) [2022] AATA 1068 (23 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717566
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:L. Symons
DATE:23 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 23 February 2022 at 1:59pm
CATCHWORDS
REFUGEE – Protection visa – Taiwan – political opinion – member of student group – supported Sunflower Movement protests – credibility issues – not a student at time of protests – vague answers – disinterest in politics – inaccuracies – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 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 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 14 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, arrived in Australia [in] April 2015 as the holder of a subclass 417 Working Holiday visa. On 19 November 2015, he was granted a second subclass 417 Working Holiday visa that was valid until 14 April 2017.
The applicant applied to the Department of Immigration (the Department) for a Protection visa on 10 April 2017. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 10 August 2017, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal, via video, on 9 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
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 AND FINDINGS
The applicant’s claims in his application for Protection visa are summarised as follows:
·He was born on [date] at Taipei City in Taiwan.
·He is a member of the student group that supported the Sunflower Movement.
·The purpose of the demonstration was to protect the economy of Taiwan from a trade agreement with the People’s Republic of China. The trade agreement would hurt the economy and leave it vulnerable to political pressure from Beijing. This would result in a loss of job opportunities for young people.
·He was arrested during the demonstration in April 2014 and kept at the Police Station for five days. He was asked by the Police for information about other protestors but he did not provide any other person’s name.
·After his release, he was unable to contact his friends, because he did not want to make trouble for them and his daily activities were monitored.
·He came to Australia in 2015 to work and to avoid harm from the Taiwan government. Many protestors were arrested and interrogated after the April 2014 demonstration and the government does not want another protest to occur.
·He is scared and he believes he will be arrested if he returns to Taiwan.
·He will not get help from the authorities in Taiwan because the government does not want another demonstration like in April 2014.
·He did not try to move to another part of the country because his daily activities were monitored. He was not allowed to move home.
The applicant provided the Department with a copy of the biodata page of his Taiwanese passport issued [in] 2015.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 14 July 2017.
Receiving Country
The applicant claims to be a citizen of Taiwan and has provided a copy of the biodata page of his Taiwanese passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Taiwan. The Tribunal finds that Taiwan is his receiving country for the purpose of assessing his claims for protection under the refugee criteria and under the complementary protection criteria.
Third Country Protection
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Assessment of claims
The applicant gave evidence to the Tribunal that his application for a Protection visa was prepared by a friend on his instructions which were true and correct. When asked whether he was satisfied that his visa application is accurate and complete, he responded that at the time he was worried about the times. His memory of the times was not accurate. There have been no changes in his circumstances since he filed his visa application.
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, where he lived in Taiwan, his employment, why he left Taiwan and why he fears returning to Taiwan. The Tribunal found aspects of his evidence to be vague, evasive, implausible and unconvincing. He made new claims during the hearing. Some of his claims were not consistent with the country information. His conduct was not consistent with his claims. The Tribunal finds that he is not a reliable witness for the following reasons:
First, in his application for a Protection visa, the applicant claimed that he is a member of the student group that supported the Sunflower Movement and he participated in the protest.
During the hearing, the Tribunal discussed this claim with the applicant. He stated that the protest was organised by the “student board”. He was not a student at the time and was working. When asked why he participated in a student demonstration if he was not a student, he responded that he felt supportive of their approach. He felt that signing the agreement was not good for Taiwan. The protest was held at the Legislature in Taipei and he went there. When asked when he went there, he responded that he could not remember. He went there several times. When asked over what period of time he went there, he responded at least three times and mostly at night. The protest lasted 2 to 3 weeks.
The Tribunal asked the applicant about his role in the protest. He repeated that he was just supportive of that approach. If there was anything he could help with he helped. When asked what he did, he responded that he delivered food and water and donated money. When asked when he participated in the protest, he responded that he could not remember as it had been a long time. He then stated that it was approximately 6 months before he came to Australia. As he arrived in Australia [in] April 2015, the Tribunal asked him whether that would have been around October 2014. He responded that he could not remember but that sounded correct. When asked whether he has been following what is happening in politics in Taiwan since he left Taiwan, he responded rarely. When asked why, he responded because he rarely has to do with things that happened in Taiwan.
The country information indicates that the Sunflower protest began on 18 March 2014 and garnered worldwide attention and support.[1] The Tribunal would expect that if the applicant had participated in such a significant protest and was arrested as a result of his participation in the protest as claimed, it would have been a momentous event in his life and he would remember the date. The Tribunal would also expect that if he was motivated to get involved in the protest, he would have an interest in politics in Taiwan, be better informed of the reasons for the protest and have his own views about it. His inability to accurately remember when he participated in the protest, his vague answers in relation to what the protest was about and why he supported it and his general lack of interest in politics in Taiwan raise doubts about whether he participated in the protest. It also raises issues in relation to his credibility and the veracity of his claims.
[1] Tracey Cheng, Taiwan’s Sunflower protest: Digital Anatomy of a Movement, Media Rep, 2015. (Taiwan’s Sunflower Protest. Digital Anatomy of a Movement (mediarep.org))
Second, in his application for a Protection visa, the applicant claimed that he was arrested during the demonstration in April 2014 and kept at the Police Station for five days. He claimed that he was asked by the Police for information about other protestors but he did not provide any other person’s name.
During the hearing, the Tribunal discussed these claims with the applicant. He gave evidence that there were tens of thousand of people protesting at the Legislature. When asked how the protest ended, he responded that it went on for a very long time, fizzled out as less and less people went there and then ended. When asked whether he had any problem while participating in the protest, he responded that the Police took him to the Police Station and interrogated him. When asked why he was taken to the Police Station, he responded that the Police learned that he had donated money and he resisted the Police and fought back. When asked what happened at the Police Station, he responded that the Police threatened him and said, “if he kept doing this, he would face this consequence”.
The applicant stated that the Police released him after 5 days because they did not have any reason or grounds to detain him. When asked if he was charged with an offence, he responded that he does not think so. If he was, he would have received a Court Appearance Notice and he did not receive that. He could not remember when he was released from Police custody. When asked what happened to the other protesters at the Legislature, he responded that several leaders were taken away and interrogated similar to him. They were taken away for different reasons. They were the leaders and he was fighting back or resisting. When asked if anything else happened to the leaders of the protest, he responded that he did not know anything else.
The applicant’s evidence raises a number of issues for the Tribunal. Firstly, the applicant’s evidence that he donated money for the protest and he resisted the Police and fought back are new claims that were not made in his visa application. The Tribunal would expect him to have included these important details in his visa application. Secondly, his new claim that the Police arrested him partly because they found out that he had donated money for the protest is implausible. On his own evidence, there were tens of thousands of people protesting at the Legislature. In these circumstances, it is highly unlikely that the Police would have been able to find out who was donating money for the protest.
Thirdly, the applicant’s evidence in relation to what happened at the Police Station is inconsistent with his written claims. In his visa application, he claimed that the Police asked him for information about other protestors but he did not provide them with any other person’s name. He made no mention of this during the hearing and instead made new claims that he was threatened that if he kept doing this, he would face this consequence. Fourthly, his evidence in relation to how the protest ended is not consistent with the country information. The Tribunal would expect him to know how the protest ended if he participated in the protest and had an interest in the outcome of the protest. Fifthly, his lack of knowledge or interest in what happened to the leaders of the protest is inconsistent with him being someone who was motivated to donate money for the protest, participate in the protest and fight against the Police at the protest.
The country information indicates that in March 2014 hundreds of students invaded the Taiwan parliament’s main debating chamber to protest against a trade agreement with China and thousands of people rallied to support them. President Ma and the ruling Kuomintang (KMT) at the time had pursued closer trade and political links with China. The opposition Democratic Progressive Party (DPP) has pledged support for the students while they remain inside the parliament building.[2] Riot Police subsequently evicted scores of protestors from the parliament chamber as well as dispersing demonstrators outside using water cannons. Sixty one people were arrested for breaking into the Executive building.[3] The movement was dubbed the Sunflower Movement as the university students carried sunflowers.
1 'Taiwan students occupying parliament 2014', BBC News, 21 March 2014, CX1B9ECAB10538.
[3] 'Taiwan police clash with students in protests over trade deal', CNN, 25 March 2014, CX1B9ECAB10536.
The KMT suffered a significant local election defeat in November 2014 and the opposition DPP gained from the election result.[4] The new administration in Taiwan wasted no time in distancing itself from its predecessor. They withdrew charges against 126 students involved in anti-China protests.[5]
[4] 'Enduring impact of Taiwan's 'Sunflower Movement' one year on', Daily Mail (Australia), 17 March 2015, CXBD6A0DE4728.
[5] 'New Taiwanese gov’t makes swift move to drop charges against sunflower movement activists', Hong Kong Free Press, 23 May 2016, CX6A26A6E13227.
The Tribunal put this country information to the applicant and noted that, for someone who claimed to have participated in the protest and donated to the cause, he did not seem to know much about what happened including how the protest ended, that some students were charged and that the charges were subsequently dropped. The Tribunal raised as an issue its doubts that he participated in the protest. He declined to respond.
Third, in his visa application, the applicant claimed that after his release from Police custody he was unable to contact his friends because he did not want to make trouble for them and his daily activities were being monitored. He claimed that he did not try to move to another part of the country because his daily activities were being monitored and he was not allowed to move home.
During the hearing, the Tribunal discussed these claims with the applicant. When asked whether he had any problems after his release from Police custody, he made a new claim that he would frequently receive telephone calls from the Police. When asked what the telephone calls were about, he responded that they would say things along the lines that he should keep to his job and not participate in any student movement. He received telephone calls roughly every day for roughly over a month and then they stopped. When asked if anything else happened, he responded that this was the one thing he remembered the most. He made no mention of his daily activities being monitored or him not being allowed to move home.
The Tribunal raised this issue, other issues in relation to inconsistencies in his evidence and its concerns in relation to the credibility of his claims with the applicant. He responded that if he received daily telephone calls does that not count as daily monitoring? His response does not address all the issues raised with him or alleviate the Tribunal’s concerns. These issues raise further concerns in relation to his credibility and the veracity of his claims.
Fourth, in his visa application, the applicant claimed that he came to Australia in 2015 to work and to avoid harm from the Taiwan government. He claimed that he is scared and he believes he will be arrested if he returns to Taiwan. This is in spite of having continued to live in Taiwan until mid-April 2015 and nothing happening after the telephone calls from the Police stopped roughly one month after his release from Police custody. His conduct in Australia has not been consistent with these claims.
The records of the Department indicate that the applicant arrived in Australia [in] April 2015 as the holder of a subclass 417 Working Holiday visa. On 19 November 2015, he was granted a second subclass 417 Working Holiday visa that was valid until 14 April 2017. He then applied for a Protection visa on 10 April 2017, four days before his second Working Holiday visa expired. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that his conduct may lead the Tribunal to the conclusion that he applied for a Protection visa to extend his stay in Australia and not because he is in need of protection.
The Tribunal noted that it would expect that if he feared being arrested if he returned to Taiwan, he would have applied for a Protection visa soon after his arrival in Australia. His delay in applying for a Protection visa until 2 years after he arrived in Australia raised concerns about his credibility and the veracity of his claims.

The applicant responded that, firstly, it was his friend who applied for a Protection visa on his behalf because he was aware that he participated in the student movement. It was not until then that he learned about the existence of a Protection visa. Secondly, the reason he came to Australia was to lift his mood because of the incident that happened in Taiwan which made him feel bad. At the time, he was only aware of the Working Holiday visa. He did not know about Protection visas.
The Tribunal does not accept the applicant’s explanation. He came to Australia on a temporary visa that required him to leave Australia before that visa expired. If he genuinely feared that he would be arrested on his return to Taiwan as claimed, the Tribunal would expect him to have consulted a registered migration agent soon after his arrival in Australia to obtain immigration advice. Had he done so, he would have found out about Protection visas much sooner. His delay in applying for a Protection visa raises issues in relation to his credibility and the veracity of his claims.
Other considerations
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he has fabricated his material claims for the purpose of obtaining a Protection visa.
The Tribunal accepts that the applicant was born on [date] at Taipei City in Taiwan. The Tribunal accepts that his parents and older brother live in Taiwan. The Tribunal accepts that his parents divorced when he was young and he lived with his father thereafter. The Tribunal accepts that he visited Australia with his father when he was young, liked it very much and always wanted to return to Australia. The Tribunal accepts that he would prefer to live in Australia than in Taiwan.
The Tribunal does not accept that the applicant participated in the Sunflower protest in March 2014 and that he donated money to the cause. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he was or is of adverse interest to the Police. The Tribunal does not accept that he left Taiwan for the reasons claimed or that he fears returning to Taiwan for the reasons claimed.
In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Taiwan now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the refugee criterion?
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reason of his actual or imputed political opinion or any other reason set out in s.5J(1)(a) of the Act if he returns to Taiwan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Taiwan now or in the reasonably foreseeable future.
Accordingly, the Tribunal is 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 he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.
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) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
L. Symons
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.
…

[2022] AATA 1068

23 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Remedies