1807943 (Refugee)

1807943 (Refugee) [2023] AATA 4546 (28 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807943
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Peter Vlahos
DATE:28 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
This Statement was made on 28^th October 2023 at 7.30AM.
CATCHWORDS
REFUGEE – protection visa – Taiwan – membership of particular social group – homosexual woman – disgraced by family and discriminated against by neighbours – minimal supporting evidence – consent to decision without hearing – applicant’s responsibilty to specify claims and provide evidence – country information – LGBTI laws, effective police and independent judiciary – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5F(1)(a), 5J(1)(a), 5L, 36(2)(a), (aa), 65, 360(2)(b)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Applicant S v MIMA [2004] HCA 25
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
NABE v MIMA (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 Home Affairs on 9 March 2018 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, applied for the visa on 27 July 2017. The delegate refused to grant the visa on the basis that it did not satisfy sub-section 36(2) of the Act.
On 20 October 2023 the Tribunal wrote to the applicant informing her that she was invited to a hearing scheduled for 7 December 2023 at 9.00am to give evidence and present arguments relating to the issues arising in her application for Protection visa (and the subject of this review).
On 21 October 2023 the applicant wrote to the Tribunal requesting the Tribunal to consider her claims (case) on the papers and therefore, vacating her invitation to appear before the Tribunal to present her case, evidence and arguments.
Therefore, the Tribunal has thus determined this matter on the papers with the applicant’s consent, as provided for by s.360(2)(b) of the Migration Act, as amended.
The applicant provided no additional evidence with her correspondence to the Tribunal
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of origins and identity
There is no evidence before the Tribunal to indicate that any of the documents provided to the Tribunal by the applicant is a bogus document as is defined in section 5(1) of the Act.
Based on a copy of the applicant’s Passport, which was provided to the Department of Home Affairs (the ‘Department’) and to the Tribunal (on file) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of Taiwan and has had her claims assessed against that country in relation to section 36(2)(a) and section 36(2)(aa) of the Act and on the basis of this evidence (before the Tribunal), the Tribunal further accepts and finds the applicant’s identity is as is claimed for the purposes of this decision.
Protection in another country
The Tribunal finds on the evidence before that the applicant does not have a right to enter or to reside in a country other than the Republic of Taiwan. Therefore, the Tribunal concludes and finds that section 36(3) of the Act does not apply to the applicant.
Department File accessed by the Tribunal
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s record to the Tribunal with his application for review.
Background – the Applicant’s migration and visa history
[Redacted]
EVIDENCE BEFORE THE TRIBUNAL
Background – the Applicant’s Personal details
The applicant noted that she was born on [Date], in New Taipei, New Taipei Province, Taiwan. The applicant provided no details of any family members currently living in Taiwan (no response provided in Q.42, Application Form). The applicant noted that she had received her primary and secondary education in Taiwan and had graduated from [College] (between September 2010 to June 2014). Her employment history while in Taiwan (see, Q.84 Application) between September 2011 to February 2013, sales ‘[Employer 1]’ and between February 2013 to August [2015], [Employer 2].
The applicant provided no other details on whether she was currently employed or whether she was attending to any studies while in Australia.
The Applicant’s claims for Protection
The Tribunal noted that the applicant made the following written claims in her application for Protection visa which was submitted to the Department and noted in summary form here, as follows:[1]
[1] Department of Home Affairs_ [deleted]_ PPV Application_ dated 20 July 2017 at pp. 32-34.
§The applicant left Taiwan because she is a homosexual, and she was discriminated against and persecuted due to her sexual orientation.
§If the applicant returns to Taiwan and fails to change her sexual orientation, her family will falsely imprison her and not allow her contact with others. She will not be provided with food and she will be forced to change her sexual orientation. Her freedom will be lost. Her family did this to her while she was in Taiwan.
§If the applicant disobeyed her family’s instructions, she would be beaten up.
§The applicant’s family regarded her as disgraceful, and she suffered all kinds of torture.
§The applicant was also discriminated against by her neighbours.
§The applicant claimed that she tried seeking help from the police, but they saw the issue as a family affair. She was told to resolve the problem in private. he left Taiwan with the help of friends.
§Taiwan is a small place. No matter where the applicant runs, she will be discovered.
§The applicant because of her sexual orientation will not receive protection from the government. The Taiwan authorities believe that homosexuals are unlawful and won’t provide her with any help.
§If the applicant is forced to return to Taiwan, she will once again experience unfortunate things. The applicant will be discriminated against and persecuted in every aspect.
§Laws are universal in Taiwan and relocation won’t change her circumstances.
The Tribunal noted (referring to the Department File) that the applicant provided no supporting evidence to the Department with her Protection visa application Form, nor with her application for Review Form submitted to the Tribunal.
COUNTRY INFORMATION _REPUBLIC OF TAIWAN_ GAY RIGHTS_LGBTI COMMUNITY IN TAIWAN_ LAW AND COMMUNITY ATTITUDES
“Taiwan has a reputation as a beacon of liberalism in the region”[2] and is a “vibrant liberal democracy”.[3] The liberal Democratic Progressive Party (DPP) won Taiwan’s January 2016 general election against the historically dominant Kuomintang and Taiwan elected its first female president. The country is a democracy, although Freedom House refers to it as vulnerable in relation to its relationship with the People’s Republic of China[4]. President Tsai Ing-wen announced her faith in democracy and committed to implementing reforms to improve the lives of Taiwanese people.[5]
[2] “Taiwan court rules in favour of same-sex marriage, first in Asia", Reuters, 24 May 2017, CXC9040667904
[3] “Have Taiwan's identity politics outgrown the one China myth", World Politics Review, 18 May 2017, CXC9040667764
[4] "Freedom House - Freedom in the World Report 2017", Freedom House, NG2A465F53, p.12.
[5] "President Tsai vows to lead Taiwan to 'soar on wings'", Focus Taiwan, 12 November 2016, CX6A26A6E13294.
Taiwan has a low crime rate and one of the lowest violent crime rates worldwide. There is extensive CCTV coverage throughout Taiwan, which plays a significant role in deterring the majority of criminal activity, as the overall crime rate is 1.3 per cent, and overall violent crime in Taiwan is at a worldwide low of just 0.01 per cent.[6]
[6] ‘Taiwan 2016 Crime & Safety Report, Overseas Security Advisory Council (OSAC), US Department of State, 12 July 2016, Political, Economic, CIS38A80123296
Transparency International’s 2017 report on corruption in the Asia Pacific region asserts that the citizens of Taiwan (along with those of Australia and Sri Lanka) found that corruption was less pervasive in their society than the citizens of 13 other countries in the region.[7]
[7] "People and Corruption: Asia Pacific - Global Corruption Barometer", Transparency International, 07 March 2017, CISEDB50AD3769, p.29.
LGBTI RIGHTS IN TAIWAN
Freedom House describes Taiwan’s protection of civil liberties as generally robust.[8]The Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community has been described as vibrant.[9]Significantly, in October 2016, draft legislation was introduced in the Legislative Yuan to formally recognise same-sex marriage.[10]This was the first such ruling in Asia.[11] The constitutional court, known as the Judicial Yuan, stated that said that “current marriage laws in Taiwan 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”.[12]
Furthermore, the government has committed to improve protections to LGBTI citizens.[13] The ruling DPP has a record of supporting gay rights.[14] Taiwanese law prohibits employment discrimination based on sexual orientation and violence against LGBT people is “adequately addressed by police”.[15]
[8] “Freedom in the World – Taiwan 2017", Freedom House, NG2A465F552.
[9] Taiwan court rules in favour of same-sex marriage, first in Asia", Reuters, 24 May 2017, CXC9040667904
[10] “Freedom in the World – Taiwan 2017", Freedom House, NG2A465F552; Taiwan court rules in favour of same-sex marriage, first in Asia", Reuters, 24 May 2017, CXC9040667904; On the Same-Sex Marriage Case", Constitutional Court, Republic of China, 24 May 2017, CISEDB50AD4491
[11] “Taiwan court rules in favour of same-sex marriage, first in Asia", Reuters, 24 May 2017, CXC9040667904
[12] “Taiwan court rules in favour of same-sex marriage, first in Asia", Reuters, 24 May 2017, CXC9040667904
[13] Ibid
[14] “Freedom in the World – Taiwan 2017", Freedom House, NG2A465F552
[15] On the Same-Sex Marriage Case", Constitutional Court, Republic of China, 24 May 2017, CISEDB50AD4491
Whilst discrimination against LGBTI individuals may be more widespread than suggested by the number of court cases due to the reluctance of victims to lodge formal complaints, reported instances of violence against LGBTI individuals were rare and the police response was adequate.[16]
[16] “Freedom in the World – Taiwan 2017", Freedom House, NG2A465F552
HUMAN RIGHTS IN TAIWAN
The United States Department of State (USDOS) noted in 2017 that in Taiwan’s main human rights problems are as follows:[17]
[17] "Country Report on Human Rights Practices 2016 – Taiwan", US Department of State, 03 March 2017, OGD95BE926957, p.1.
Principal human rights problems reported during the year were exploitation of foreign workers,      including foreign crewmembers on long-haul fishing vessels and household caregivers;     domestic violence; and official corruption.
Other human rights concerns during the year included some media self-censorship with regard     to China; vote buying; violations of legal working hours; lack of barrier-free spaces and accessible transportation systems for persons with disabilities, particularly outside Taipei;    gender-biased sex selection; and a rise in child abuse.
As of June, authorities indicted 201 officials, including 23 high-ranking officials, on corruption      charges. There were no reports of impunity….
POLICE
There is ample evidence to indicate that effective protection measures are available in Taiwan. 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 to promote the welfare of its citizens.[18]The USDOS also confirmed that “civilian authorities maintain effective control over the security forces”, including the NPA and there are effective mechanisms to investigate and penalise corruption.[19] Taiwan has “a fully elaborated, multilevel governing bureaucracy that collects taxes, pays pensions, maintains armed forces and enforces civil order”.[20]
[18] ‘Taiwan 2016 Crime & Safety Report, Overseas Security Advisory Council (OSAC), US Department of State, 12 July 2016, Political, Economic, CIS38A80123296
[19] "Country Report on Human Rights Practices 2016 – Taiwan", US Department of State, 03 March 2017, OGD95BE926957, pp. 1-3.
[20] Have Taiwan's identity politics outgrown the one China myth", World Politics Review, 18 May 2017, CXC9040667764
An academic survey conducted by National Chung Cheng University in July 2016 found that Taiwan’s overall citizen satisfaction rates of the police is at an all-time high of 73.7 percent. The survey result is an endorsement of the police's efforts in maintaining public safety and building better relationships with the people. The survey also indicates that the NPA is upgrading its criminal investigation expertise and, in conjunction with the Criminal Investigation Bureau, established an Anti-Fraud unit in August 2016.[21]
[21] "Statistics shows satisfaction with police reached all-time high 73.7%", Ministry of the Interior. Republic of China (Taiwan), 23 September 2016, CIS38A80123706.
JUDICIARY
The judiciary in Taiwan is independent and trials are generally fair.[22]
The law requires a warrant or summons, except … in urgent circumstances, as specified in        the code of criminal procedures. Courts have judicial discretion to release indicted persons on          bail. Prosecutors must apply to the courts within 24 hours after arrest for permission to       continue detaining an arrestee. Authorities generally observed these procedures, and trials    usually took place within three months of indictment.[23]
… Detained persons may request the assistance of the Legal Aid Foundation (LAF), a publicly      funded independent statutory organization that provides professional legal assistance      … to     persons who might not otherwise have legal representation … The law affords the right      of       compensation to those whom police have unlawfully detained. [24]
The constitution provides for an independent judiciary; however, some political commentators     and academics publicly questioned the impartiality of judges and prosecutors involved in high-    profile and politically sensitive cases. During the year, judicial reform advocates pressed for     greater public accountability, reforms of the personnel system, and other procedural          improvements. All defendants are presumed innocent until proven guilty … They also have           the right to an attorney and to be present at trial.[25]
There is an independent and impartial judiciary for civil matters. Administrative remedies are       available in addition to judicial remedies for alleged wrongdoing, including human rights       violations.[26]
FREEDOM OF MOVEMENT
The constitution provides for freedom of internal movement, foreign travel, emigration, and repatriation, and authorities generally respected these rights.[27]
[22] ‘Freedom in the World 2016 – Taiwan’, Freedom House, 29 June 2016, NGE43874C341, p.4, F. Rule of Law
[23] "Country Report on Human Rights Practices 2016 – Taiwan", US Department of State, 03 March 2017, OGD95BE926957, pp. 3-4.
[24] "Country Report on Human Rights Practices 2016 – Taiwan", US Department of State, 03 March 2017, OGD95BE926957, pp. 3-4.
[25] "Country Report on Human Rights Practices 2016 – Taiwan", US Department of State, 03 March 2017, OGD95BE926957, pp. 4-5.
[26] "Country Report on Human Rights Practices 2016 – Taiwan", US Department of State, 03 March 2017, OGD95BE926957, p.5.
[27] "Country Report on Human Rights Practices 2016 – Taiwan", US Department of State, 03 March 2017, OGD95BE926957, p.7.
FINDINGS AND REASONS FOR DECISION
General comments

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded”. Similarly, that an applicant claims to face a risk of “significant harm” does not establish that such a risk exists or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant: see: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
Consideration of the Applicant’s claims
Does the Applicant meet the Refugee Criterion?
The applicant raised very serious claims in her application for Protection visa.
The applicant claimed restrictions being placed on her freedom to choose for herself, how she wished to live her life in Taiwan, as a lesbian (or as “a homosexual” as she described in her Application)[28] and to make matters worse, the applicant claimed that she was “discriminated and persecuted” because of “sexual orientation”. Adding to her claims, the applicant intimated that she did not wish to return to Taiwan because if that was the case, she would be forced to “alter her sexual orientation” because of her “family” would “persecute” her because of her “sexual orientation”.[29] The applicant also claimed that “…my family” would “falsely imprison” her and “not allow me to [have] contact with others”. Moreover, the applicant feared that because of her choosing to live her life as lesbian, her family would “not provide [her] with food” and she would be “forced to alter her sexual orientation” and hence, her “freedom would be lost.”[30] Finally, the applicant claimed that she “tried to seek help from the [Taiwanese] police” but received no assistance because according to the applicant’s claim, “they believed” (the applicant’s issue) was “our family’s issues” and advised “to solve this problem in private.”[31]
[28] Department of Home Affairs_ File no. _CLF2017/67926_ Application For Protection Visa_ Form-866C Personal Details for Each Person included in this Application_ Q.89, and Q.90
[29] Ibid, see Q. 91, and Q.92
[30] Ibid, see the above
[31] Ibid, see Q. 89-93 also.
The Tribunal would have benefited in having the applicant present at the hearing and listening to the applicant’s concerns about her life in Taiwan as a member as she claimed of the LGBTI community. However, the applicant did not accept the Tribunal’s invitation to attend the hearing and was content to have the Tribunal decide her claims on the evidence as was available in the Department’s file and on the Tribunal’s file at the time of the writing of this decision.
From the outset, the Tribunal noted that the evidence in support contained in both files reviewed by Tribunal is very minimal.
The Tribunal, having been confronted with the lack of evidence (other than what is recorded in the applicant’s application Form) is reminded of the applicant’s (who is a non-citizen) responsibility in relation to her protection claims as provided for in section 5AAA of the Act. Section 5AAA states as follows:
(1)    This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2)    For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim….
(4)    To remove doubt, the Minister does not have any responsibility or obligation to:
(a)specify, or assist in specifying, any particulars of the non-citizen’s claim; or
(b)establish, or assist in establishing, the claim.
The purpose of this provision is to make clear, that it is the applicant’s responsibility to specify the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claim.[32] Indeed, for the avoidance of doubt, it is also made clear that the Minister (or in this instance, the Tribunal) does not have any responsibility to make a case for protection on behalf of the asylum seeker (in this instance, the applicant).[33]
[32] Migration Amendment (Protection and Other Measures) Act 2015 (Cth), commencement date 13 April 2015_ see, Explanatory Memorandum_
[33] see, Ibid_ Explanatory Memorandum_ at p.7
Further, though this provision has not yet been the centre of attention by the courts, the section’s wording, subject to any subsequent consideration to the contrary, it is likely that section 5AAA will be found to be consistent with existing law which establishes the following which are relevant to the applicant’s circumstances in this review:
§that it is for the applicant to make out his or her own case: see, Abebe v Commonwealth of Australia (1999) 197 CLR 510, at [187] per Gummow and Hayne JJ; and
§that the decision-maker is only required to consider claims that are expressly made by an applicant or that clearly arise on the material before the decision-maker: see, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE) at [58], [60]-[61] per Black CJ, French and Selway JJ.
The Tribunal is guided by these judicial considerations in arriving at its conclusions and findings concerning the applicant’s claims that follow.
Does the applicant fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion?
The applicant fears persecution and harm in Taiwan because she is a lesbian. Section 5J(1)(a) of the Act provides a list of reasons for which a person in the applicant’s position may claim that her persecutor or persecutors – public or private – may be motivated to inflict harm upon her. The five reasons in s.5J(1)(a) are similar to those provided in Article 1A(2) of the Refugees Convention. These ‘reasons’ being (1) race, (2) religion, (3) nationality, (4) membership of a particular social group and (5) political opinion.
Membership of a particular social group
The applicant situation attracts the reason – membership of a particular social group which is other than family and is given definition in section 5L of the Act and further meaning by the courts.[34] In the Tribunal’s opinion (and as determined correctly, by the Department’s delegate in their decision) – a homosexual person in Taiwan meets the criteria of a particular social group because of the following features: (a) there is a characteristic shared by each member of the group – namely ‘homosexuality’, (b) the applicant shares the characteristic, and (c) the characteristic is not fear of persecution. In addition to this, such a group shares all three of the following features: (a) the characteristic is innate or immutable, (b) the characteristic is so fundamental to a member’s identity or conscience the member should not be forced to renounce it, and (c) the characteristic distinguishes the group from society.
[34] see Applicant S v MIMA [2004] HCA 25, per Gleeson CJ, Gummow and Kirby JJ at [36].
Therefore, in accordance with s.5J(1)(a) of the Act, the Tribunal is satisfied that the applicant fears persecution for reasons of her homosexuality.
Is the fear of persecution well-founded?
As referred above, the applicant fears persecution in Taiwan because she is a lesbian. In the Department’s file there is no ‘statement’ penned by the applicant explaining why she fears persecution in her country because of her being a lesbian. We are told in her application, that she left Taiwan because of her being a lesbian and had been discriminated against and persecuted due to her sexual orientation but the applicant provides no explanation of how she was discriminated and persecuted because she was a lesbian. The file has no evidence of when a discriminatory event or events occurred, and no description has been provided of an actual persecution having been suffered by the applicant while in Taiwan. More to the point, the applicant provides no examples of such instances in order to highlight the fact that her fears of being persecuted are well-founded.
Further, the applicant claims that if she returns to her country of origin – Taiwan, and “fails to change her sexual orientation” “her family will falsely imprison her and not allow her contact with others”. She also claims that her family members would “not provide [her] with food” and that “her freedom will be lost” and that “her family did this to her while she was in Taiwan.”[35] Again, the evidence of these claims is minimal, sparse and no specific details provided and without the Tribunal having the benefit of the applicant’s presence before it to discuss, probe and understand the applicant’s concerns, the Tribunal is unable to determine with any degree of certainty whether the applicant’s claims are credible or in simpler terms, the truth of the matter.
[35] See, Department of Home Affairs File_ Applicant’s claims for Protection_ Application for Protection Form_ submitted to the Department_
Indeed, as referred to earlier in this decision, in accordance with section 5AAA of the Act, it is the non-citizen’s responsibility (the applicant’s in this instance) to specify all the particulars of her claim and to provide sufficient evidence to establish the claim or claims submitted to the decision-maker to consider and to deliberate on. The applicant’s absence from the proceedings before the Tribunal when invited prevents her from fulfilling her obligation under the Act to provide the Tribunal with all evidence in order to allow the Tribunal to fulfil its legislative duty to consider properly the applicant’s claims and to arrive at a proper decision concerning her claims.
The applicant makes further claims with minimal evidence of “seeking help from the police” which considered her concerns as “a family affair”. The applicant claimed that that she “had been beaten up” by her “family members” and yet there was no evidence explaining and describing in detail these circumstances. Moreover, the applicant claimed that because of “her sexual orientation she [will not] receive protection from [Taipei] government” for the reason (according to the applicant’s minimal description of this claim) the “authorities believe that homosexuals are unlawful” and therefore, “[will not] provide her with any help.”[36]
[36] Ibid
The Tribunal notes the applicant’s claims and her wilful absence from any questioning by the Tribunal, and (the Tribunal) having considered the current country information it can only conclude and find that there is no real chance that the applicant will experience serious harm in Taiwan because of her being a homosexual as provided for in s.5J(1)(a) or for any other reason. The Tribunal having noted the available country information, it advises in clear terms and with many examples that lesbian, gay, bisexual and transgender (LGBT) rights in Taiwan are regarded as the most progressive of those of Asia.[37] Both male and female same-sex sexual activity are legal, and same-sex marriage was legalised on 24 May 2019, following a Constitutional Court ruling in May 2017. Same-sex couples are able to jointly adopt children since 2023. Discrimination on the basis of sexual orientation, gender identity and gender characteristics in education has been banned nationwide since 2004.[38] With regard to employment, discrimination on the basis of sexual orientation has also been prohibited by law since 2007.[39] This information and what follows, indicates in strong terms that the Tribunal’s conclusion (in the absence of any evidence to the contrary) is that the applicant has a favourable and safe existence as a lesbian and member of LGBTI community – the safest and most progressive in the entire region of Asia.
[37] Steger, Isabella. “In a first for Asia, Taiwan legalised same-sex marriage -with caveats” Quartz. Archived ( from the original on 6 June 2019. Retrieved 20 May 2019. “Though Taiwan is widely regarded as the most progressive place in Asia for gay rights – the closest country in the region that has legalised gay marriage is Australia – conservative groups have long tried to pressure legislators to pass a law that does not grant same-sex unions equal rights to heterosexual ones.”
[38] “Gender Equity Education Act” Article 13-14, Act of 23 June 2004 ( Archived ( from the original 23 June 2021. Retrieved 9 April 2018.
[39] “Employment Service Act”. Article 5, Act of 23 May 2007 ( Archived from original on 23 June 2021.
The Executive Yuan first proposed the legal recognition of same-sex marriage in 2003; however, the bill received strong opposition at that time and was not voted on in the Legislative Yuan. Fourteen years later on 24 May 2017, the Judicial Yuan ruled that the existing marriage law was unconstitutional, and that same-sex couples should gain the right to marry. The court gave the Legislative Yuan a maximum of two years to either amend existing laws or enact laws to provide legal recognition of same-sex marriage. According to the court ruling, if it failed to do so by 24 May 2019, same-sex marriage would automatically become legal for the first-time in Asia.[40]
[40] “Judicial Yuan Interpretation No.758”. Constitutional Interpretation of 24 May 2017 ( Archived from the original on 8 April 2018. Retrieved 8 April 2018.
Although a 2018 Taiwanese referendum rejected same-sex marital rights 68% to 31%, it was ultimately vetoed by the government, affirming the court ruling.[41] On 17 May 2019, the Legislative Yuan approved a bill, submitted by the Executive Yuan, recognizing marriage for same-sex couples. The bill was signed into law by President Tsai Ing-wen on 22 May and went into effect on 24 May. Thus, Taiwan became the first country in Asia to recognize same-sex marriage at the state level.[42] The first Taiwan Pride was held in Taipei in 2003. By 2015, when the event was attended by 80,000 participants, it had become the second-largest LGBT pride in Asia, behind Tel Aviv Pride in Israel, which has led many to refer to Taiwan as one of the most liberal countries in Asia as well.[43] By 2019, attendance had grown to 170,000 participants.[44]
[41] “Thousands attend Taiwan’s first pride since legislation of gay marriage” ( The Guardian. AFP. Retrieved 31 March 2023.
[42] “Taiwan legalises same-sex marriage, a first in Asia” ( ABC News. Australian Broadcasting Corporation. 17 May 2019.
[43] McCormack, Joseph Patrick (31 October 2015). “Asia’s biggest Pride takes place as tens of thousands march in Taipei” ( Pink News archived from the original on 9 May 2019. Retrieved 24 May 2017.
[44] Ibid.
Legality of same-sex sexual activity: Private, consensual, and non-commercial sexual activity between adults of the same sex is legal in Taiwan. In fact, homosexuality has never been a crime. The age of consent is 16 for both homosexual and heterosexual acts.[45]
[45] Ibid
Constitutional rights: The Constitution of the Republic of China does not expressly mention sexual orientation or gender identity; however, the Constitutional Court ruling on same-sex marriage in 2017 (i.e. Judicial Yuan Interpretation No. 748), based on the following two articles of the Constitution, has confirmed the following constitutional protections for LGBT people:
Article 7 of the Constitution states that "all citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law".[46] In the constitutional interpretation issued on 24 May 2017, the Constitutional Court reasoned that the prohibited grounds of discrimination listed in the Article are "illustrative, rather than exhaustive", so the right to equal protection applies to other classifications "such as disability or sexual orientation".[47]
Article 22 of the Constitution stipulates that "all other freedoms and rights of the people that are not detrimental to social order or public welfare shall be guaranteed under the Constitution".^[14] The Grand Justices ruled on 24 May 2017 that the freedom of marriage guaranteed by the Article applies to persons of all sexual orientations.[48]
According to Judicial Yuan Interpretation No. 185, "the interpretations of the Judicial Yuan shall be binding upon every institution and person in the country".[49]
[46] “Judicial Yuan Interpretation No.758”. Constitutional Interpretation of 24 May 2017 ( Archived from the original on 8 April 2018. Retrieved 8 April 2018.
[47] Ibid
[48] ibid
[49] “Judicial Yuan Interpretation No.185” Constitutional Interpretation of 27 January 1984 ( Archived ( from original on 25 October 2017. Retrieved 9 April 2018.
Recognition of same-sex relationships:[50] In October 2003, the Executive Yuan proposed legislation granting the right to marry and adopt to same-sex couples, but it faced bipartisan opposition from members of both the Cabinet (formed by the ruling Democratic Progressive Party, DPP) and the Legislative Yuan (controlled by the Kuomintang-led Pan-blue coalition) and stalled, and thus not voted on.
[50] Hogg, Chris (28 October 2003). “Taiwan move to allow gay unions” (
In 2011, aiming to promote awareness about same-sex marriage, about 80 lesbian couples held Taiwan's then biggest same-sex wedding party, attracting about 1,000 friends, relatives and curious onlookers. In 2012, the first same-sex Buddhist wedding was held for Fish Huang and her partner You Ya-ting, with Buddhist master Shih Chao-hui presiding over the ritual. In 2013, Chen Ching-Hsueh and Kao Chih-Wei, the second Taiwanese same-sex couple to wed publicly, dropped a prolonged fight to have their marriage legally recognized, citing intense social pressure. Later that year, lifelong gay activist Chi Chia-wei picked up Chen and Kao's fight to have same-sex marriage recognized, presenting his case in the Taipei High Administrative Court for the first time.
On 22 December 2014, a proposed amendment to the Civil Code which would have legalized same-sex marriage was due to go under review by the Judiciary Committee of the Legislative Yuan. If the amendment had passed the committee stage, it would then have been voted on at the plenary session of the Legislative Yuan in 2015. The amendment included replacing the current articles regarding marriage in the Civil Code with gender-neutral terms, effectively recognizing same-sex marriage. It would have also allowed same-sex couples to adopt children. Yu Mei-nu of the Democratic Progressive Party (DPP) had expressed support for the amendment, together with more than 20 other DPP lawmakers as well as two from the Taiwan Solidarity Union and one each from the ruling party Kuomintang (KMT) and the People First Party. Taiwan would have become the first Asian state (and non-UN recognized entity) to legally recognize same-sex marriage if the Civil Code had been amended. However, the bill stalled, and the attempt officially failed in January 2016 as the Eighth Legislative Yuan ended.

In November 2015, around two months before the general election, presidential candidate Tsai Ing-wen announced her support for same-sex marriage. In July 2016, several lawmakers of the Ninth Legislative Yuan announced that they would introduce a same-sex marriage bill in Parliament by the end of the year. In October, two same-sex marriage bills were introduced to the Legislative Yuan.
Discrimination Protection:[51]
[51] “Employment Service Act”. Article 5, Act of 23 May 2007 ( Archived from original on 23 June 2021.
Discrimination based on sexual orientation, gender identity and other gender-related attributes in education has been banned since June 2004 when the Gender Equity Education Act (Chinese: 性別平等敎育法) was passed. Specifically, schools that discriminate against students due to their sexual orientation or gender identity, in terms of admission, instruction, assessment, etc., are subject to a fine of NT$100,000. In June 2011, new clauses on sexual bullying were added to the Act. Schools are obliged to prevent and report bullying that is directed at a person's sexual orientation or gender identity.
In 2007 and 2008, the Legislative Yuan passed amendments to two employment laws banning discrimination based on sexual orientation at work. Any employer who breaches the anti-discrimination clauses in the Employment Service Act (Chinese: 就業服務法) or the Act of Gender Equality in Employment (Chinese: 性別工作平等法) could face a fine of NT$300,000 to NT$1,500,000. In March 2010, the Ministry of Education announced that, starting from 2011, school curriculum and textbooks would include topics on LGBT rights and non-discrimination. According to the Ministry, the reform seeks to "root out discrimination", since "students should be able to grow up happily in an environment of tolerance and respect". Due to strong opposition from anti-LGBT groups, a compromise was made. For instance, one teaching objective was changed from "understanding one's sexual orientation" to "respecting diverse sexual orientations". In November 2018, following a referendum, Education Minister Yeh Jiunn-rong said that the approval of the initiative ("Do you agree that the Ministry of Education and individual schools should not teach homosexual-related education in schools?") does not mean that the Ministry of Education will stop promoting gender equality education, but LGBT-related content will be reviewed to see if it needs revising in accordance with the referendum results.
The Long-Term Care Services Act (Chinese: 長期照顧服務法), enacted in January 2017 to regulate long-term care services for persons with illness or disability who cannot live fully independently, contains an anti-discrimination clause that covers sexual orientation and gender identity.
In 2017, the Taiwanese Constitutional Court, also known as the Judicial Yuan, issued J.Y. Interpretation No. 748, which stated that Article 7 of the Constitution prohibits discrimination based on sexual orientation. The ruling stated that "the five classifications of impermissible discrimination set forth in Article 7 of the Constitution are only exemplified, neither enumerated nor exhausted. Therefore, different treatments based on other classifications, such as disability or sexual orientation, shall also be governed by the right to equality under the said Article."
Transgender Rights:[52]
[52] “2017 Taiwan LGBTI Rights Policy Review” (
Since 1988, Taiwan government allowed to change the gender information in the identification card and other legal documents with surgery requirements and two psychiatric diagnosis certificates.
In 2002, transgender activist Tsai Ya-ting unsuccessfully petitioned the Presidential office to allow her to use a photo that represented her actual appearance on her National Identification Card.
In 2008, the Ministry of the Interior stipulated in an executive order that transgender and intersex people must undergo sex reassignment surgery in order to change their legal gender on personal documents. Plans to remove the surgery requirement were discussed in late 2014, but were not implemented. In October 2019, a transgender woman attempted to change the designated gender on her national identification card. Her local household registration office refused the request, as she had only provided diagnostic evidence of gender dysphoria, and no evidence of sex reassignment surgery. An appeal to her local government was unsuccessful. The Taipei High Administrative Court ruled on the case in September 2021, permitting her gender to be listed as female without evidence of sex reassignment surgery. The Taipei High Administrative Court issued the decision based on the Constitution, which guarantees all freedoms and rights that are not detrimental to social order or public welfare. In addition, the court cited previous legal interpretations that concluded all limitations on people's rights must be enumerated in a specific law.
In August 2013, Taiwanese authorities accepted a request for the country's first transgender marriage, after initially questioning the couple's gender.
In August 2016, Audrey Tang, a top software programmer, was appointed by the Tsai Administration to the Cabinet and became the first transgender minister of Taiwan. Her role as the Minister without portfolio (i.e., heading no particular ministry) deals with helping government agencies communicate policy goals and managing government-published information, both via digital means.
In January 2018, it was announced that plans to introduce a third gender option on identification documents, such as passports and the National Identification cards, would be implemented in the near future. In November 2018, Chen Mei-ling, the Minister of the National Development Council, announced that these plans will come into effect in 2020. The third gender option was under discussion at one point but wasn't implemented later.
A 2020 survey found that 55% of transgender Taiwanese were afraid of using a public restroom, 19% had been harassed or attacked in public, and 16% were afraid to ask a police officer for help.
The Tribunal having carefully considered the above available country information can only conclude in the absence of any evidence to the contrary, that lesbians and other members of the LGBTI community in Taiwan enjoy equality of rights and the full protection of the law and there is no real chance that the applicant will experience serious harm in Taiwan for reasons of her sexual orientation or for any other reason as provided for by s.5J(1)(a) of the Act.
The Tribunal on the available evidence before it and having considered the available country information is not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act and therefore, the Tribunal finds that that the applicant is not a person in respect of whom Australia has protection obligations as provided by s.36(2)(a) of the Act
Also, as the Tribunal has been satisfied that the applicant is not a refugee as defined in s.5H(1) of the Act, consideration and any assessment as provided by s.5H(2) of the Act was not made.
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).
COMPLEMENTARY PROTECTION CRITERIA - CONSIDERED
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion – the complementary protection criterion in s 36(2)(aa).
The applicant has claimed to fear harm because of her sexual orientation.
In MIAC v SZQRB [2013]FCAFC 33 (20 March 2013), Lander and Gordon JJ, stated (in part) that :
In our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] …there is a real chance that SZQRB will suffer significant harm … were he to return to Afghanistan [see paragraph 246]…
In the present case, the Tribunal has found that on the evidence before it, the applicant faces no real chance of serious harm in Taiwan for all the reason as she submitted. The individual and cumulative reasoning applies equally in the complementary protection context, having regard to the concepts of real risk and significant harm.
Thus, the Tribunal finds that the evidence before it, offers no substantial grounds for believing the applicant faces a real risk of significant harm – in any manner or form – as claimed – as a necessary and foreseeable consequence of the applicant being returned to Taiwan, for any of the reasons submitted. In particular, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Taiwan, there is a real risk that the applicant is to suffer significant harm inflicted upon her by members of her family or from members of society in Taiwan in general or by the authorities in Taiwan for reason or reasons of her sexual orientation and wishing to live her life as a lesbian in Taiwan as is provided in s.36(2)(aa) of the Act. Also, the Tribunal does not accept that applicant has endured or will endure any discrimination because of her sexual orientation and wishing to live her life (in Taiwan) as a member of the LGBTI community from private individuals or the state or any harm in her personal life of which the applicant complained, even if viewed cumulatively, amounting to ‘significant harm’ as defined by s.36(2A) of the Act.
Therefore, 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.
Peter Vlahos
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.
…

[2023] AATA 4546

28 October 2023

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