1809566 (Refugee)

1809566 (Refugee) [2021] AATA 3026 (24 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1809566
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:James Lambie
DATE:24 June 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 June 2021 at 1:52pm
CATCHWORDS

REFUGEE – Protection visa – Taiwan – participation in the Sunflower movement – applicant was properly invited to a hearing – failed to attend hearing – delay in applying for protection visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 426A, 499
Migration Regulations 1994, Schedule 2, cl 866.211
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 March 2018 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 7 November 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant claims to be [age] years old and a national of Taiwan.
On 9 September 2015, the applicant was granted a Class TZ, Subclass 417 (Working Holiday) visa (TZ 417).
The applicant first arrived in Australia [in] November 2015 as the holder of a TZ 417 visa and he departed Australia [in] June 2016.
On 26 August 2016, the applicant was granted an extension to his TZ 417 visa.
The applicant arrived in Australia [in] November 2016 as the holder of a TZ 417 visa.
On 7 November 2017, the applicant lodged an application for a Class XA, Subclass 866 (Protection) visa. He was subsequently granted a Class WA, Subclass 010 (Bridging A) visa in association with the lodgement of his protection visa application.
On 12 March 2018, the applicant was notified that the Department of Home Affairs had refused to grant his application for a protection visa in a decision made on the same date.
On 6 April 2018, the applicant applied for merits review of the Department’s decision of 12 March 2018 to refuse to grant his application for a protection visa.
Claims:
The applicant’s claims are summarised in the delegate’s decision and the applicant’s protection visa application.
The applicant claims he attended the Sunflower movement on [date] March 2014. He claims he was arrested by riot police and detained for four days.
The applicant claims he was tortured during his military service.
The applicant claims he will be arrested by the government if he returns for attending the Sunflower movement.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application, which was lodged on 7 November 2017;
·The applicant’s identity documents being a copy of his passport issued by the Republic of China (Taiwan) provided to the Department;
·The protection visa decision record dated 12 March 2018 (the delegate’s decision record);
·The application for review form dated 6 April 2018;
·Department file [number deleted] concerning his protection visa application; and
·Country information on Taiwan, referred to below.
Country of reference / receiving country:
The applicant claims to be a citizen of Taiwan. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Taiwan is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
On 28 May 2021, the Tribunal wrote to the applicant advising that it had considered the material before it but 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 to be held on 24 June 2021. The letter advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent to the applicant by email at the email address provided in the application for review. That correspondence had not been returned from the applicant and the Tribunal received no response.
On 28 May 2021, the Tribunal express posted a courtesy copy of the hearing invitation and a hearing reminder to the applicant’s postal address as provided in the application for review. Australia Post tracking information indicates that this correspondence was delivered and left in a safe place at the applicant’s postal address on 31 May 2021. That correspondence had not been returned from the applicant and the Tribunal received no response.
On 10 June 2021 and 17 June 2021, the Tribunal sent hearing reminders to the applicant by email at the email address provided in the application for review. That correspondence had not been returned from the applicant and the Tribunal received no response.
The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. The applicant failed to provide any reasonable explanation as to why he could not attend at the scheduled time. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
Accordingly, this matter has been determined on the evidence available to the Tribunal
Assessment of claims and evidence, and findings:
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’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal also notes that the recent decision of the Federal Court in BZADA v MIC andRRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of
satisfaction to grant the applicant a visa given his failure to attend the hearing and
the Tribunal’s inability to test and examine his claims in evidence. The relevant
statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach
a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the
criteria for the grant of a protection visa depends not on a particular matter being
established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The Tribunal has carefully considered the applicant’s claims as detailed in his application for a protection visa, both individually and cumulatively. The applicant did not take the opportunity to attend the hearing and did not provide additional information in support of his claims, even after having been advised of the delegate’s decision. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
The applicant’s written claims were very brief and general, and relate to the applicant having been arrested and detained by the police in March 2014, and to having been tortured by his company commander between September 2014 and September 2015, and to a fear that he may suffer harm at the hands of the police.
Had the applicant attended the hearing, the Tribunal would have asked him for further detail about his claims, which would have afforded him an opportunity to address their lack of specificity and to respond to the decision of the delegate. He would also have been able to provide further information and evidence.
On the material presented, the Tribunal has insufficient evidence as to:
·details and evidence of his participation in the Sunflower movement;
·details and evidence of his arrest by riot police and the circumstances of his detention and release;
·details and evidence as to any charges that were laid against him and the outcome of those charges;
·details and evidence as to the identity of his company commander, the torture to which he was subjected and the injuries he sustained;
·details and evidence of the police visit to his family home, and the circumstances of his escape;
·details and evidence of his claims as to why, if he returned to Taiwan, he would have reason to fear the police and the Government of Taiwan.
I have also noted that the applicant, despite having arrived in Australia in November 2016, did not apply for a protection visa until 4 November 2017. Had he attended the hearing, I would have asked him why he had lodged his protection visa application only on expiry of his working holiday visa extension.
A delay in seeking protection can support an adverse credibility finding as well as finding that the applicants fear is not well-founded[1]. In Subramaniam v MIMA[2], the court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. While a delay in making protection visa application by itself is not conclusive, it reasonably remains an indication in the applicant’s case that claimed fear of harm in this regard is not genuine. Had the applicant attended the hearing, the Tribunal would have asked whether he had a reasonable explanation for the delay in making the protection visa application.
[1] See Zhang v RRT and Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.
[2] [1998] FCA 305.
The Tribunal has had regard to the following country information regarding the 2014 Sunflower Movement, freedom of speech and the right to peaceful protest in Taiwan relevant to the applicant’s claims.
Freedom of speech and the right to peaceful protest is enshrined in the Constitution of the Republic of China (Taiwan):
Article 11. The people shall have freedom of speech, teaching, writing and publication.
Article 14. The people shall have freedom of assembly and association.
Article 16. The people shall have the right of presenting petitions, lodging complaints, or instituting legal proceedings.
Article 17. The people shall have the right of election, recall, initiative and referendum.
Article 22. All other freedoms and rights of the people that are not detrimental to social order or public welfare shall be guaranteed under the Constitution.
Article 23. All the freedoms and rights enumerated in the preceding Articles shall not be restricted by law except by such as may be necessary to prevent infringement upon the freedoms of other persons, to avert an imminent crisis, to maintain social order or to advance public welfare.
Article 24. Any public functionary who, in violation of law, infringes upon the freedom or right of any person shall, in addition to being subject to disciplinary measures in accordance with law, be held responsible under criminal and civil laws. The injured person may, in accordance with law, claim compensation from the State for damage sustained.[3]
[3] Laws & Regulations Database of the Republic of China (Taiwan), “Constitution of the Republic of China (Taiwan)”
The Department of Foreign Affairs and Trade’s current country brief on Taiwan states the following:
Negotiation of a trade in services agreement with China proved controversial with many, particularly younger voters apprehensive that Taiwan was becoming too economically dependent on the mainland. In March 2014, students and NGOs led large street demonstrations, dubbed the Sunflower Movement, and occupied the chamber of the Legislative Yuan for 23 days. The social activism inspired by the Sunflower Movement led to the establishment of a number of new political parties, such as the New Power Party.[4]
[4] Department of Foreign Affairs and Trade, “Australia-Taiwan relationship” >
The Diplomat published a news article on 11 April 2014 stating that demonstrators left the occupied legislature voluntarily upon receiving assurance from Legislative Speaker Wang Jin-pyng:
585 hours after they led an unprecedented occupation of the Legislative Yuan to protest a trade pact with China, hundreds of Taiwanese on April 10 vacated the country’s parliament and were welcomed by tens of thousands of supporters during a ceremony high in emotions.
As promised during a press conference on April 7, the about 300 activists from the Sunflower Movement pulled out of the legislature at 6 pm, ending an occupation that has sparked intense debate within Taiwanese society and attracted the attention of an otherwise indifferent foreign media.
Although a few splinter groups associated with the movement opposed leaving the legislature and argued that the government could not be trusted to fulfill its promises, the core leadership succeeded in convincing the rest of the group that it was time to leave. Not only did they have public support behind them, they were also exhausted after 24 days marked by lack of sleep, irregular meals, and constant media attention.
As tens of thousands of people gathered around the legislature for a last rally, a few dozen members of the alliance who had occupied the second floor of the legislature began evacuating at about 4 pm. As they climbed down a single ladder, hundreds of teary-eyed supporters cheered them with rounds of applause.
Inside the legislature, the hundreds of activists who remained were preparing for their exit at 6 pm. By 5 pm, several hundred police in riot gear had gathered at the building’s various points of access. The atmosphere inside the chamber was calm, and by then most of the posters, placards, banners and other artifacts that had accumulated over the past three weeks had been removed and were to be preserved by academic institutions. The day before, members of the movement had spent hours cleaning carpets and erasing any remnants of their occupation.
After a moving speech by movement leaders Lin Fei-fan and Chen Wei-ting, it was time to leave. Outside the legislature on Jinnan Road, tens of thousands of people had by then packed the area, many of them carrying sunflowers. As the activists emerged from the building, a full brass band played the song “Island’s Sunrise” by the band FireEX, which has become the anthem for the movement. In the two hours that followed, several students, academics and activists delivered emotional speeches on a makeshift stage and reaffirmed their commitment to continuing the fight.[5]
[5] The Diplomat, “Sunflowers End Occupation of Taiwan’s Legislature” (11 April 2014)

According to a news article by the Hong Kong Free Press published on 23 May 2016, the first political decision made by Premier Lin Chuan, after deliberation with newly sworn-in President Tsai Ing-wen, was to drop charges against 126 activists who were involved in the 2014 Sunflower Movement:
“The sunflower student movement was a political incident, and not a purely legal incident, it should be handled as leniently as possible under the principle of more harmony and fewer conflicts,” the executive branch’s spokesperson Tung Chen-yuan cited Lin as saying. Tung further quoted Lin as saying that the former cabinet’s move to press charges against students was a political action.
The demands of the movement were now the “consensus of society” and the legislature has moved to introduce laws to monitor cross-strait agreements. The legitimacy and contribution of the movement have been accepted, so the government decided to drop the charges, Tung quoted Lin as saying.
Lin Fei-fan, one of the student leaders of the movement, said he personally was “very pleased” by the decision to drop the charges. He was not one of the 126 who were charged, but he admitted participating in planning the protests.[6]
[6] Hong Kong Free Press, “New Taiwanese gov’t makes swift move to drop charges against sunflower movement activists” (23 May 2016)
Because the applicant did not appear and provide evidence as to how he had particularly been affected by the attitude of the authorities to the Sunflower movement, including the extent of harm, if any, suffered by him, or provide evidence as to why he continues to be sought by the police, the Tribunal is unable to be satisfied that there is a real chance that on return to Taiwan, either now, or in the reasonably foreseeable future, that the applicant would be persecuted or suffer serious or significant harm.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his participation in the Sunflower movement, if he returns to Taiwan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Taiwan. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
The Tribunal has considered the applicant’s claims in terms of complementary protection.
Having regard to the findings of fact above, I do not accept that the applicant left Taiwan because he feared for his physical safety.
In view of these findings, I am not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Taiwan now or in the reasonably foreseeable future. Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, as well as having considered his personal circumstances, I am not satisfied that the applicant will be arbitrarily deprived of his life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment, or he will be subjected to degrading treatment or punishment if he returns to Taiwan now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the circumstances above, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason, including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s. 5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan that there is a real risk that he will suffer significant harm.
Overall conclusion
For the reasons 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 of 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.
James Lambie
Senior 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.
…

[2021] AATA 3026

24 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction