1718364 (Refugee)

1718364 (Refugee) [2018] AATA 3614 (17 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1718364
COUNTRY OF REFERENCE:                  Taiwan
MEMBER:Louise Nicholls
DATE:17 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 17 August 2018 at 4:57pm
CATCHWORDS
Refugee – Protection Visa – Taiwan – Particular social group – Homosexual – Victim of discrimination and physical harm – Effective state protection available – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims to be a citizen of the Republic of China (Taiwan) and she is [age] years of age. She was granted a [temporary] visa [on] 3 December 2014 and arrived in Australia on 18 March 2015. On 31 October 2015 she was granted a further [temporary] visa which ceased on 18 March 2017.
The applicant applied for a protection visa on 13 March 2017 and provided a copy of the biodata page of her Taiwanese passport and 3 pages endorsed with entry and departure stamps.
On 21 July 2017 the delegate of the Minister for Immigration refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the criteria for a protection visa.
This is an application for review of that decision and it was lodged on 17 August 2017. The applicant provided the Tribunal with a copy of the delegate’s decision record, a copy of her Taiwanese passport and a number of photographs.
The applicant was invited to attend a hearing on 10 May 2018. She attended and on that occasion a Tribunal hearing did not take place but the applicant updated her personal details and provided a registry officer with photographs and documents.
The applicant was invited to attend a Tribunal hearing on 16 August 2018 to give evidence and present arguments and she appeared on that date and gave evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant gave evidence about her background in Taiwan, her migration history and her claims for protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complementary protection.
The relevant law is set out in Attachment A.
What is the country of reference?
The applicant claims she was born in, and is a citizen of, Taiwan. She provided a copy of her Taiwanese passport which was issued [in] 2014. She has consistently claimed that she is of Taiwanese nationality and at the hearing spoke Mandarin fluently and was familiar with the geography and culture of Taiwan.
Taking into account the available evidence the Tribunal is satisfied that the applicant is a citizen of Taiwan and that Taiwan is the receiving country for the purposes of s.36(2)(aa).
What are the applicant’s claims?
The applicant’s claims are set out in her application for protection. The applicant discussed, and elaborated on, her claims in oral evidence given at the Tribunal hearing held on 16 August 2018.
Essentially the applicant claims if she returns to Taiwan she will face harm because she is a lesbian. She claims she suffered discrimination, harassment and physical harm as well as lack of family acceptance in Taiwan because of her homosexuality. She claims she cannot live in Taiwan because of the discrimination and that she will continue to suffer discrimination and abuse if she returns to Taiwan because of her homosexuality.
Background
The applicant is [age] years of age and before her arrival in Australia she mainly lived with her parents at an address in Kaohsiung City, Taiwan.
As far as the applicant is aware her parents live in the family home in Kaohsiung City. Her father was employed as [an occupation] and her mother did not work because she was in poor health. The applicant’s brother is married and lives in Taiwan with his wife. The applicant claims she does not have any current contact with her parents or brother.
The applicant claims she was in a relationship with her girlfriend in Taiwan but no longer has any contact with her former girlfriend.
The applicant completed high school in Taiwan and then [completed] a university [degree]. During her studies she found work in [Workplace 1] and after she finished her degree she worked full-time in [Workplace 2]. She left that employment and then found work in [Workplace 3] before she came to Australia on a [temporary] visa.
She stated that her first full time work after she completed university was with [Workplace 2] where she worked in 2013/2014. She stated that the company sold [products] to other businesses and was operated by the husband and wife owners. She stated that the business employed her as an [Occupation 1] as well three delivery drivers. She stated that she used to price the [products] and arrange for deliveries and orders. She also stated she helped with [more menial tasks] from time to time. The Tribunal put it to her that it was unusual that an [Occupation 1] would be involved in [doing the menial tasks] but she stated it was a small company and everyone shared the work. She worked at this company for 6/7 months and then left to work in [Workplace 3].
After she left [Workplace 2] she worked [in Workplace 3] in Kaohsuing City and this was her last employment before she left Taiwan to take up her [temporary] visa in Australia.
The applicant claimed she applied for her [temporary] visa in November 2014 and after it was granted, arrived in Australia on 28 March 2018. She has held two [temporary] visas; the first which ranged from 18 March 2015 to 18 March 2016 and the second was extended until 18 March 2017.
During the period of her [temporary] visas she first worked at [Workplace 4] in [City 1] for seven months then worked at [Workplace 5] [for] about a year. She then found work at [Workplace 6] [and] then in [Workplace 7] in Sydney.
During the periods she held a [temporary] visa she travelled back to Taiwan on two occasions. She claimed that she did not stay with her family during those visits and lived in a hotel. She could not remember the name of the hotel and stated she paid for the accommodation in cash and did not have any receipts.
The applicant applied for a protection visa shortly before her [temporary] visa was due to cease.
Is the applicant a homosexual?
In the application for protection the applicant stated that she left Taiwan because she faced discrimination due to her homosexuality. She formed a relationship with her girlfriend in 2014 when she worked in [Workplace 3]. After she told her family and friends about her girlfriend her life became difficult and her parents would not accept the fact that she was a lesbian. They tried to encourage her to form a relationship with men and were disappointed when she did not want to form a heterosexual relationship. They forced her to move out of home and never contacted her again. Her friends told other people about her sexuality and many people that she did not know discriminated against her. They followed her on the street, they laughed at her, they hit her and asked her to give them money.
If she returns to Taiwan she claims she will continue to suffer discrimination because she is a lesbian. She claimed that the authorities told her she did not have enough evidence that others had hurt her. She claimed she cannot avoid discrimination anywhere in Taiwan.
At the Tribunal hearing the applicant gave evidence that she is a lesbian and was aware that she was attracted to other girls when she was in kindergarten. As discussed with the applicant, the Tribunal found it difficult to accept that at the age of 5 or 6 years the applicant would have developed feelings of sexual attraction for other girls in kindergarten. Although the Tribunal does accept that the applicant currently identifies as a lesbian and that she is sexually attracted to other women, it does not accept she formed a homosexual orientation in kindergarten.
The applicant claimed that she was attracted to other girls in primary school and had six or seven homosexual relationships with classmates and co-workers after she started attending high school. Her evidence regarding these several claimed relationships was vague and overly generalised and the Tribunal put it to her that she appeared to be exaggerating the number of relationships she had in Taiwan. She was not able to provide any plausible detail about these relationships. The Tribunal does not accept that she had several homosexual relationships with classmates and co- workers before she came to Australia. It considers she has given this evidence in an attempt to strengthen her claims that she is, and has been a lesbian, in Taiwan. Despite these exaggerations the Tribunal accepts that she is a lesbian.
She also gave evidence regarding a relationship she had with a girlfriend she first knew at school and then later when she was working at [Workplace 3] in Kaohsiung City, Taiwan. This evidence is consistent with the claim made in her protection visa application that she formed a relationship in 2014. She claimed that she and her girlfriend had a homosexual relationship whilst they were working at [Workplace 3] and she provided a number of photographs showing the applicant and her former girlfriend together in displays of affection and love letters written to each other. She stated that as a result of this relationship she was taunted by young men working at [Workplace 3] and that her girlfriend was encouraged by these men to break off the relationship.
The applicant decided to apply for a [temporary] visa in November 2014 and told her parents about the relationship around this time. She stated that around this time she told her parents about the relationship and they became angry, objected to the relationship and told her to leave the house. She claimed her mother slapped her. She stated that after this her girlfriend did not want to continue their relationship and she felt abandoned by everyone. She left the family home and stayed in a hotel until she came to Australia.
She claimed that when she returned to Taiwan on her first visit the purpose was to visit her girlfriend and her parents. When asked for further details she stated that her girlfriend told her she did not want to have a relationship with the applicant. She claimed she did not have contact with her parents; she just went to an area near their home. Her evidence on what occurred during the first visit was somewhat unclear and there was some minor inconsistency in when she told her parents about the relationship.
The applicant claims her parents have rejected her and they have no contact. Whilst the Tribunal accepts that the applicant’s parents object to her sexual orientation and that they are hostile to her lifestyle the Tribunal has some doubts whether there has been a complete breakdown of contact. However, for the purposes of this decision it accepts her evidence that she and her parents do not keep in contact.
At some stage the applicant found out that her former girlfriend married and that she and her husband now have a child. The applicant provided photographs of her former girlfriend and her husband. She explained these photographs were taken when she returned to Taiwan for a second visit. On that visit she was also told by her girlfriend’s parents to stay away from their daughter.
With respect to relationships in Australia, the applicant claimed that after she arrived in Australia she had a four month relationship with a girl who worked with her [at Workplace 4] in [City 1]. That girlfriend then fell in love with a boy and returned to Taiwan.
Whilst in Australia she stated she has not joined any Lesbian, Gay, Bisexual or Transgender (LGBT) organisations or groups or engaged in any LGBT activities because she has been busy working.
The Tribunal accepts that the applicant identifies as a lesbian and that she is sexually attracted to other women. It accepts that she had a relationship with a co-worker at [Workplace 3] in Kaohsiung City but that the relationship broke down in about November 2014. It also accepts the applicant had a short relationship with another woman in Australia in 2015 but that the relationship ended after about four months. Despite identifying as a lesbian the applicant has not become involved in any gay activities in Australia.
The Tribunal considers that the applicant would continue to identify as a lesbian if she returned to Taiwan and would continue to seek out female partners.
Did the applicant suffer mistreatment in Taiwan due to her homosexuality?
The applicant claimed in writing and in her oral evidence that she suffered discrimination and physical harm in Taiwan for reasons of her homosexuality. She also claims that she was rejected by her family and was forced to leave the family home. She claimed that she had suicidal thoughts at times and self-harmed.
When asked for some detail about the claimed discrimination and physical harm she stated that her classmates had laughed at her, spat at her, verbally abused her and hit her at school. She was afraid to tell her family or teachers about this conduct.
She claimed that when she worked at [Workplace 2] the owner’s wife treated her badly, asked her to buy food and expected her to undertake difficult tasks. She also claimed she was verbally abused. However, as put to the applicant her poor treatment by the owner’s wife was most likely related to her junior position in the company.
The applicant also claimed that “they” pushed her close to [dangerous equipment] whilst she was working at [Workplace 2]. She did not specifically identify who she meant by “they” and as put to her at the hearing the Tribunal had concerns about this evidence. The Tribunal does not accept that an [Occupation 1] with a degree [would] have been involved in [working with such equipment] as part of her employment. It also does not accept that she was put at risk in this way because she was a lesbian.
She stated she looked like a tomboy and claimed that when she worked at [Workplace 3] she was taunted and laughed at her by the young men who worked at [Workplace 3]. On one occasion she was pushed and her arm was [injured]. They also told her girlfriend to break off their relationship and to go out with the young men instead.
The applicant provided some photographs of minor injuries which she claimed arose from mistreatment for reasons of her homosexuality. These included a scar on her [body part] where she had been pushed from a motorcycle, a small mark on her [other body part] where she was [injured] in [Workplace 3], a mark on her [head] where a classmate threw an object at her at school and two scars where she had cut herself and bitten herself.
She also provided photographs of two tattoos she acquired. She explained that she acquired these tattoos in the hope that they might make people think she was tough and that they would therefore not harass her.
As discussed with the applicant, the Tribunal accepts that the applicant may have been bullied, taunted and struck by classmates when she was at school due to a perception that she was a homosexual. As a school child, it is understandable that she may have been reluctant to make a complaint about this conduct because she feared telling her teachers and parents why she was bullied.
The Tribunal also accepts that the young men working in [Workplace 3] taunted her and pushed her because of a perception she was a homosexual.
The applicant also claimed that she decided to tell her parents about her relationship with her girlfriend and when she told them her mother slapped her. Her parents both rejected her and forced her to leave the family home. Whilst she was somewhat unclear as to when she told her parents about her relationship and when she was forced to leave the family home the Tribunal accepts that at some stage she told her parents about her relationship and they objected to her relationship and did not accept her homosexuality.
Country information on the situation for members of the LGBT community in Taiwan.
Since the end of martial law in 1987, Taiwan has transformed itself into a vibrant democracy. The first democratic elections for Taiwan’s Legislative Yuan (parliament) were held in 1992, with democratic elections for the Presidency following in 1996. Presidents and members of the Legislative Yuan are elected for terms of four years; presidents are limited to a maximum of two terms.[1]
[1] DFAT Country Brief Taiwan
Taiwan has laws addressing employment discrimination. The Employment Services Act 1992 states that in order to ensure national workers' employment opportunity and equality, employers cannot discriminate against employees and job applicants on the basis of race, class, language, thought, religion, marital status, party affiliation, age, birthplace, one's provincial/county origin, gender, sexual orientation, facial features, appearances, disabilities and former membership in labour union. Article 5 of the implementation of the regulations also mandates that municipal cities, county and city governments form commissions on employment discrimination to enforce the Act. Currently commissions have been established throughout Taiwan (Article 5).[2]
[2] Employment Discrimination in Taiwan, Cing –Kae Chia, Academia Sinica, New developments in employment discrimination law: 2008 JILPT Comparitive Labor Law Seminar No 6, 2008
The US Department of State report on Taiwan noted that
The law stipulates that employers cannot discriminate against job seekers based on sexual orientation and also prohibits schools from discriminating against students based on their gender temperament, gender identity, or sexual orientation.
Activists for lesbian, gay, bisexual, transgender, and intersex (LGBTI) rights said discrimination against LGBTI persons was more widespread than suggested by the number of court cases, due to victims’ reluctance to lodge formal complaints. Reported instances of violence against LGBTI individuals were rare, and the police response was adequate.[3]
[3] Country Report on Human Rights Practices 2017 – Taiwan s.6 >
With respect to education, Taiwan introduced laws to promote gender equality and eliminate discrimination on the basis of gender and sexual orientation in the education system in 2004.[4] Enforcement Rules for the legislation was introduced in 2005.
[4] Gender Equity Education Act, announced/promulgated: 23 June 2004; (>
Article 13 of the Rules states
The curriculum related to gender equity education referred to the second paragraph of Article 17 of the Act shall cover courses on affective education, sex education, and gay and lesbian education in order to enhance students’ gender equity consciousness.[5]
[5] Enforcement Rules for the Gender Equity Education Act, announced/promulgated: 13 June 2005; (>
Taiwan is described as a beacon for the LGBT community in Asia. The New York Times reported in 2014
When it comes to gay rights in Asia, Taiwan is a world apart. Openly gay and lesbian soldiers can serve in the military, and the Ministry of Education requires textbooks to promote tolerance for gays and lesbians. In recent years, legislators here have passed protections for gays, including a law against workplace discrimination.
A bill to legalize same-sex marriage has been introduced in Taiwan’s legislature, although it still faces strong opposition from Christian activists and their allies in the governing Kuomintang.
“Taiwan is an inspiration for much of Asia,” said Grace Poore, director of Asia and Pacific island programs at the International Gay and Lesbian Human Rights Commission. “They are way ahead of their neighbors
….Religious life here, for the most part, is dominated by Buddhism and Taoism, faiths with little doctrinal resistance to homosexuality. Although they make up less than 5 percent of Taiwan’s 23 million people, Christians have formed the bulwark of the opposition. “Taiwanese are really tolerant,” said Ms. Poore of the International Gay and Lesbian Human Rights Commission. “It’s not the kind of place where gays and lesbians have to worry about violence if they are affectionate in public.”
In addition to scores of bars, clubs and gay bookstores, one well-trod tourist attraction is a Taoist shrine dedicated to a rabbit deity — based on an 18th-century Qing dynasty official who was said to be gay — who has become something of a patron saint to gay worshipers seeking good fortune.
Still, in many respects, Taiwan remains a traditional society bound by a sense of Confucian filial duty that emphasizes family and the production of heirs. Edgar Chang, 34, a chemical engineer who was wearing a rhinestone-encrusted tiara and feather boa on Saturday, said he is out to his friends but has not summoned the courage to tell his parents he has had a boyfriend for the past three years. “I don’t think they would disown me, but at the same time, I think it might kill them because they really want a grandchild,” he said. .”[6]
[6] For Asia’s Gays, Taiwan Stands Out as Beacon type="1">
In July 2018 the Taiwan News noted that Taiwan was Asia’s most LGBT friendly destination. In expressing this conclusion it noted that Taiwan;
·Is the first country in Asia to approve same-sex marriage.
·Is home to the largest Gay Pride celebration in Asia.
·Has a long and rich culture of making LGBT themed movies and that Taiwan hosts the Taiwan International Queer Film Festival.
·Has a large number of LGBT advocacy groups in Taiwan including the highly influential Taiwan Tongzhi Hotline Association which provides support, education and counselling for the LBGT community and family members.
·Most Taiwanese cities boast LGBT-friendly bars and nightclubs. Taipei has biggest gay scene can be found including the Red House which is a cultural hub and houses more than 25 LGBT bars, restaurants and nightclubs.
·Has the first Chinese language LGBT bookstore.
Reuters reported in 2017 that
Taiwan's constitutional court declared on Wednesday that same-sex couples have the right to legally marry, the first such ruling in Asia, sparking celebration by activists who have been campaigning for the right for years.
The court, known as the Judicial Yuan, said current marriage laws were "in violation of both the people's freedom of marriage ... and the people's right to equality", and it gave two years for legal amendments to allow same-sex marriage.[7]
[7] ‘Taiwan court rules in favour of same-sex marriage, first in Asia’, Reuters, 24 May 2017. >
The US Department of State reported that the National Police Administration (NPA) of the Ministry of the Interior has administrative jurisdiction over all police units, although city mayors and county magistrates appoint city and county police commissioners. Civilian authorities maintained effective control over the NPA, and authorities had effective mechanisms to investigate and punish abuse and corruption.[8]
[8] Country Report on Human Rights Practices 2017 – Taiwan the applicant meet the refugee criterion?
Taking into account the Tribunal’s findings and the country information referred to above, which was discussed with the applicant, the Tribunal does not accept that there is a real chance that if the applicant returns to Taiwan now or in the foreseeable future, she will face serious harm for reasons of her membership of a particular social group, that is, because she is a lesbian.
The Tribunal accepts that the applicant has been taunted, bullied and struck at school and subject to some harassment and pushing in the workplace before she left Taiwan.
As discussed with the applicant bullying and harassment are unfortunate, but common, aspects of school life. However, as [an age] year old woman, she would not be returning to a school environment. Further since 2004 the state has taken steps to eliminate discrimination and bullying based on homosexuality in educational facilities.
With respect to her previous workplaces, the Tribunal accepts that she may have been taunted and pushed by young men at [Workplace 3]; however, given the country information on social tolerance it does not accept that this conduct is widespread throughout the Taiwanese community. It considers this conduct was limited to that particular workplace and that she would not face such conduct in another work environment. In any event, Taiwanese law provides protections against discrimination in the workplace and state authorities have effective mechanisms to investigate abuse and breaches of the criminal law. Further there are many LGBT advocacy groups which could provide support and assistance if the applicant were to face such conduct in the future.
The Tribunal accepts that the applicant’s parents objected to her homosexuality in 2014 and asked her to leave the family home, and whilst this was distressing, the Tribunal does not accept that if the applicant faced further rejection from her family that such rejection amounts to serious harm. It finds that the applicant could find work and accommodation in Kaohsuing City or any other city in Taiwan as [an age] year old woman with a university degree and experience in the workplace and would be protected from workplace discrimination by Taiwanese law.
The country information indicates that Taiwan is a tolerant, progressive society which has a number of effective mechanisms to protect individuals against abuse, harassment and discrimination and the Tribunal does not accept that if the applicant returns to Taiwan as an openly gay person now or in the foreseeable future she would face a real chance of serious harm.
The Tribunal asked the applicant to explain why she delayed applying for protection until just before her last [temporary] visa ceased if she feared returning to Taiwan. She claimed she did not know she could apply for a protection visa until a person who lived in the same building as her told her that she could apply for protection. She claimed she completed the application form without assistance, however, when questioned she agreed she could not read the questions or answers on the application form. She stated she used Google translate to fill in the form but the Tribunal does not accept this evidence and considers she could not have completed the form without some assistance.
The Tribunal considers that the applicant does not wish to return to Taiwan at the moment and would like to extend her stay in Australia. It notes that a [specified temporary] visa can only be held for a maximum period of two years.
Whilst it accepts she is a lesbian and has had some unhappy experiences in Taiwan it does not accept that her reluctance to return is because she fears harm as a lesbian in Taiwan. It considers that if the applicant had a genuine fear of harm in Taiwan she would have taken some steps to get advice about her migration status at an earlier time and well before her visa was due to expire. She has been able to apply for an extension of her [temporary] visa without difficulty and has arranged accommodation and work in different areas of Australia competently. The Tribunal considers that she has applied for protection to extend her stay in Australia and not because she fears serious harm on her return.
Accordingly and taking all of the above into account, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of her membership of a particular social group, that is as a homosexual, or for any of the other reasons set out in s.5J(1)(a) of the Act.
Does the applicant meet the complementary protection criterion?
The Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Taiwan.
The Tribunal accepts that the applicant identifies as a lesbian and would continue to live openly as a lesbian if she returned to Taiwan.
There are no laws criminalising homosexual activity in Taiwan and the country information indicates there is a high level of tolerance in the community for members of the LGBT community. The Tribunal does not accept that the applicant will face the death penalty, arbitrary deprivation of life or torture for reasons of her homosexuality.
As set out above the Tribunal accepts that the applicant was bullied, harassed and struck at school and harassed and pushed in [Workplace 3]. However, taking into account the findings and country information set out above, the Tribunal does not accept that the applicant will face similar conduct if she is removed from Australia to Taiwan. Taiwan has legislated to eliminate educational and workplace discrimination, there are significant legal protections against discrimination and there are many Taiwanese LGBT groups which would provide support and assistance to the applicant in the event of any unfavourable treatment. The country information indicates a high level of acceptance of the LGBT community and members of the LGBT community live openly as homosexuals and socialise in various venues. The Tribunal does not accept that the applicant will face cruel or inhuman treatment or punishment or degrading treatment or punishment on her return to Taiwan.
Having considered the applicant’s circumstances singularly and on a cumulative basis the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Louise Nicholls

Senior Member
ATTACHMENT A
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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 3614

17 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Natural Justice