1731083 (Refugee)

1731083 (Refugee) [2020] AATA 1130 (9 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731083
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Christopher Smolicz
DATE:9 January 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 January 2020 at 4:00pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – imputed political opinion – anti-government profile – borrowing money from an underground bank – fear of criminal gangs – triad gangs – unlawful detention – complaint against government – fear of killing – police action against loan sharks – corruption – bail agreement – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
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 23 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Taiwan, applied for the visa on 5 September 2016.
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.
On 4 November 2019 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing.
On 5 December 2019 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal. For the purpose of the review, the applicant provided the Tribunal with a copy of the delegate’s decision.
Issue
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds.
Background
The applicant is [age] years old. She was born in Kaohsiung, Taiwan. She has travelled to Australia on a working holiday visa on the following occasions:
·[October] 2014 to [April] 2015;
·[May] 2015 to [February] 2016;
·[August] 2016 – has not departed Australia.
The applicant travelled to Australia on a passport issued by the Republic of China (Taiwan). The Tribunal finds that the applicant does not have a right to enter and reside in a country other than their country of citizenship, namely Taiwan. The Tribunal has assessed the applicant’s claims against Taiwan as the receiving country.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal found the applicant’s claims vague, lacking in detail and inconsistent with country information. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.
Underground bank loan
The applicant claims that in early 2015 her mother borrowed money from an ‘underground’ bank in order to invest in stocks. She was able to pay the interest at the beginning, however by the end of 2015 the shares plummeted and she went bankrupt and was unable to repay the loan.
The applicant did not provide any evidence to explain why her mother would decide to borrow money from an underground bank and invest in stocks. No evidence was provided about how the applicant’s mother borrowed money from an ‘underground’ bank. No evidence was provided about the amount of money her mother borrowed or the interest rate charged or what stocks she invested in. No evidence was provided to support the claim that the applicant’s mother went bankrupt. No evidence was provided by the applicant or her mother in support of this evidence. The Tribunal found the evidence vague and lacking in detail. The Tribunal does not accept the applicant’s claim that her mother borrowed money from an underground bank and invested in stock and could not repay interest and went bankrupt.
Gangsters ransack family home and abduction of applicant’s mother
The applicant claims that in February 2016 a group of gangsters broke into her family home and searched and ransacked it. The applicant was in Australia at the time. The gangsters carried her mother against her will to the gangsters’ car and took her to a hotel. She passed out on the ground as soon as she got out of the car. She regained consciousness three hours later and was detained by them for three days. The gangsters warned the applicant’s mother that they would kill her if she did not pay the money.
The applicant has not provided any evidence from her mother in support of her claim. It is unclear how the applicant found out her mother’s home was attacked by gangsters in February 2016 when she was in Australia at the time. It is unclear who the gangsters are or who many were involved in the abduction. No photographs were provided to support the claim the family home was ransacked. It is unclear why the gangsters would take the applicant’s mother to a hotel room or why they would detain her for three days. No evidence was provided to explain the circumstances in which the gangsters released the applicant’s mother.
Mother taken to hospital
The applicant claims her family took her mother to the hospital and had her blood pressure checked following the abduction. No evidence was provided by the applicant’s family in support of this claim. The Tribunal was also not provided with any medical evidence that the applicant’s mother was taken to hospital for treatment.
Involvement of triads and government officials in underground bank
The applicant claims that when she heard the news of her mother’s abduction she returned to Taiwan. She claims her family did not want to go against the ‘underground bank’ because triads were behind it, and many senior officials have relationships with the bank. No evidence was provided in support of this claim. It is unclear what ‘senior officials’ the applicant is referring to or how she is aware that they are involved in the underground bank.
Police report
The applicant claims she reported the case to the police, and the police did not provide any assistance. It is unclear when the applicant reported the incident to the police or what information she provided to the police. The Tribunal also finds that the applicant’s claim that the police took no action is inconsistent with the following country information, which confirms that Taiwan has laws criminalising illegal money lending and the police do take action against loan sharks.
Specifically, the Tribunal finds that operating within a low-crime environment, the National Police Administration (NPA) of the Ministry of Interior is effective and well-regarded. The NPA’s main missions are to carry out police and law enforcement in Taiwan, maintain public order, uphold the safety of its citizens and society, prevent hazards and promote the welfare of its citizens.[1] In 2016, an independent survey showed rising levels of confidence in citizen satisfaction with the police, reaching over 73 per cent that year.[2]
[1] ‘Taiwan 2016 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), US Department of State, 12 July 2016, Political, Economic, CIS38A80123296
[2] Statistics shows satisfaction with police reached all-time high 73.3%, National Police Agency, Ministry of the Interior, 23 September 2016 CIS38A80123706
Country information confirms that major operations against criminal gangs involved in loan shark and other associated activities are carried out in Taiwan. Violations of domestic financial rules, such as loan shark ring operations or underground economic activity, totalled 947 cases or 19 per cent of total economic crimes from January to August 2016, causing a loss of TWD6.3 billion, or 36.5 per cent of total losses from economic crimes.[3] A large raid was carried out in December 2015 with 142 suspects detained.[4] Twenty people in a New Taipei gang were arrested in August 2016 and bats, firearms and bullets were confiscated.[5]
[3] ‘IPR violations make up majority of economic crimes in Taiwan’, Focus Taiwan, 22 October 2016, CX6A26A6E11717
[4] 142 suspects arrested ahead of presidential, legislative elections in Taiwan, AsiaOne News, 20 December 2015 CXBD6A0DE19311
[5] ‘New Taipei gang busted’, Taiwan Criminal Investigation Bureau, 19 August 2016 CIS38A80123711
Reports confirm that the NPA referred victims/debtors to telephone numbers when faced by gangsters who use violence to recover money.[6]
[6] Taiwan Quick Take: Cops bust loan sharks, Taipei Times, 15 August 2006
Reports confirm that Taiwan’s Consumer Financial Protection Bureau enforces the Fair Debt Collection Practices Act, which states that debt collectors may not harass, oppress or abuse victims. A victim can report problems to the State Attorney General’s Office, the Federal Trade Commission and the Consumer Financial Protection Bureau.[7]
Open letter
[7] Taiwan News, ‘In Debt and Afraid: Dealing with Debt Collectors’, 26 March 2015, >
The applicant claims she wrote and circulated an open letter, seeking to obtain attention from the community. The Tribunal was not provided with a copy of the letter or any details of its contents. It is unclear how the applicant circulated the letter. There is no information about who the letter refers to or its purpose. It is unclear why the applicant would write an open letter rather than seek the assistance of the State Attorney General’s Office, the Federal Trade Commission and the Consumer Financial Protection Bureau.
Arrest
The applicant claims that [in] July 2016 the police illegally arrested her at her home. They confiscated her [specified items], complaint material and [an amount of money]. She was taken to the police station, and then in the evening to the detention centre. She claims she was punished because she was accused of distributing inflammatory materials that allegedly brought officials into disrepute. The applicant has not provided any details of the ‘inflammatory materials’ or the offences she is alleged to have committed. The applicant has not provided any charge sheet or details of court dates.
Bail
The applicant alleged that on 15 July 2016 the police agreed to release her but only if she paid TWD50,000 bail. The applicant claims her mother could only borrow TWD30,000 to secure the applicant’s release. The applicant claims she was released and warned that she should not offend the underground bank, and that the loan should be repaid as soon as possible. The applicant has not provided the bail agreement in support of the claim. No evidence was provided about how the money was paid or how the applicant’s mother was able to obtain a loan in light of the applicant’s earlier claim that she was bankrupt.
The Tribunal has also had regard to the following country information regarding protest activity and the rule of law in Taiwan and finds that it does not support the applicant’s claims the police would arrest her because of her protest activity.
Specifically, reports confirm that anti-government protests are a regular part of political life in Taiwan. Protests and demonstrations occur on a regular basis in major cities, particularly during elections, and rarely become violent.[8]
[8] ‘Taiwan 2018 Crime and Safety Report’, Overseas Security Advisory Council (OSAC), US Department of State, 2 July 2018, p.3, Civil Unrest, CIS7B839419268
Country information confirms that the Constitution of Taiwan prohibits arbitrary arrest and detention and is generally observed.[9] Reports confirm that Taiwan’s judiciary is generally independent and court rulings are generally fair. The judicial system provides ample opportunities to seek redress for rights violations, with court trials following due process.[10] The judiciary is independent, with court rulings generally free from political or other undue interference.[11]
[9] Country Reports on Human Rights Practices for 2017 – Taiwan’, US Department of State, 20 April 2018, p.3, Section 1d, OGD95BE927327
[10] ‘BTI 2018 Country Report – Taiwan’, Bertelsmann Stiftung, 23 March 2018, p.10, CIS7B83941566
[11] ‘Freedom in the World 2018 – Taiwan’, Freedom House, January 2018, p.4, F. Rule of Law, NGED867A615
The US Department of State Taiwan Human Rights Report states that the NPA of the Ministry of the Interior has administrative jurisdiction over all police units. Civilian authorities maintained effective control over the NPA and authorities had effective mechanisms to investigate and punish abuse and corruption. The law provides criminal penalties for corruption by officials and authorities generally implemented the law effectively.[12]
[12] ‘Taiwan - Country Report on Human Rights Practices 2015’, US Department of State, 13 April 2016, OGD95BE926327, p.5, Section 1e
The Tribunal has considered the country information and finds that it does not support the applicant’s claim that she was illegally arrested and detained.
Family home ransacked and mother detained
The applicant claims on [a day in] August 2016 the police broke into the applicant’s family home and ransacked it in front of her parents. Her mother was taken to a detention centre. Her mother did not cooperate. The police brought in more officers who placed a centipede on her mother’s neck to scare her. The police took her mother to the hospital to have her health and blood pressure checked. The police told her family to inform her (the applicant) that she should immediately return to Taiwan for investigation. No evidence was provided by the applicant’s mother in support of this claim. No explanation was provided as to why her mother would be detained and questioned by the police. No medical reports were provided in support of the claim that the applicant’s mother was sent to hospital. It is unclear why the police would be seeking to question the applicant and request her immediate return.
The applicant’s mother did not provide any evidence in support of this claim. It is unclear why the police would seek to break into the applicant’s family home in August 2016 in circumstances when they attended at her family home in July 2016 and confiscated her [specified items], complaint material and [an amount of money].
Does the applicant have a well-founded fear of persecution for one of five Convention reasons?
First, the Tribunal must consider whether the applicant has a well-founded fear of persecution for a Convention reason. In summary, the applicant claims she will be detained if she returns to Taiwan by the police and held for investigation because she has distributed an open letter she wrote and circulated and because she encouraged her mother to be critical of the government. She claims the police are corrupt and in a relationship with the ‘underground’ bank and are cooperating with gangsters and ‘senior officials’. The applicant claims that she is a person of interest to the Taiwanese police because she has an anti-government profile which will result in her suffering serious harm upon her return to Taiwan.
Having considered all of the evidence, the Tribunal does not accept any of the applicant’s claims. The Tribunal found the claims vague and lacking in important detail. The Tribunal finds the applicant’s claims and evidence were not supported by the country information detailed above. The Tribunal finds that there is no evidence that the applicant has been involved in politics in Taiwan in the past. The Tribunal does not accept she is a political activist.
As detailed above, the applicant did not give evidence at the hearing and has not taken the opportunity to expand on her claims and evidence. There is no evidence from her mother in support of the claims. She has not provided any court documents, bail agreement, charge sheet, loan agreements, share certificates or business records in support of her claims. Importantly she has not provided a copy or any details of the ‘open letter’ she claims imputed her with an anti-government political opinion and brought her to the adverse attention of the authorities in Taiwan.
In the circumstances, having considered the claims individually and cumulatively, the Tribunal does not accept any of the applicant’s claims regarding her experiences in Taiwan and her reasons for seeking Australia’s protection.

The Tribunal does not accept that she will be of any interest to gangsters or the police or the authorities more generally upon her return to Taiwan. The Tribunal is not satisfied, having considered all of the evidence, that there is a real chance that the applicant will suffer serious harm for reasons of her actual or imputed political opinion or that there is a real chance that she will suffer serious harm for reasons of her race, religion, nationality or membership of a particular social group. The Tribunal finds, therefore, that the applicant does not have a well-founded fear of persecution if she returns to Taiwan now or in the reasonably foreseeable future.
Are there substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan that there is a real risk she will suffer significant harm?
The Tribunal has also considered the applicant’s claims, having regard to the complementary protection provisions. The Tribunal has not accepted that the applicant or her mother were ever sought or harmed by the police or gangsters or that there is a real chance she will suffer serious harm from police or gangsters upon her return to Taiwan.
For the same reasons as those set out above, the Tribunal is also not satisfied that there is a real risk that the applicant will suffer significant harm from gangsters or the police if she returns to Taiwan.
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 the applicant will suffer significant harm, including arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment.
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
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.
…

[2020] AATA 1130

9 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Natural Justice