1813838 (Refugee)

1813838 (Refugee) [2022] AATA 2349 (25 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1813838
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Penelope Hunter
DATE:25 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 May 2022 at 11:43am
CATCHWORDS
REFUGEE – protection visa – Taiwan – particular social group – victims of criminal gangs – fear of killing – father’s gambling debt – physical assault – return visits to Taiwan – delay in applying for protection – state protection – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
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 18 April 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 20 November 2017. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person to whom Australia owed protection obligations under the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
CLAIMS AND EVIDENCE
The applicant is [an age]-year-old single male who arrived in Australia [in] January 2016 as the holder of a Working Holiday visa. In his visa application he set out that he resided in Songshan District Taipei City from 2005 to 2010 and then Wauhua District Taipei City from 2010 to 2015. He also identified family in his home country, particularly his parents and a [sibling]. The applicant completed his studies at [a named] University, Taipei in [specified year]. From January 2015 to January 2016 he worked as [an Occupation 1] in Taiwan. At the time of his visa application he stated that he was employed in Australia as [a Occupation 2].
In a statement that accompanied his visa application, the applicant set out the following reasons for seeking protection in Australia:
i.He feared going back to Taiwan after almost two years in Australia because he remembered that he was seriously persecuted and harmed by a local gangster and they threatened to kill him if he returned to Taiwan.
ii.He had an unhappy childhood. His parents divorced when he was at primary school. His [sibling] went to live with his mother. The applicant remained with his father, but was actually raised by his grandmother from the ages of eight to 18. His father worked away and the applicant claimed that he seldom saw him. His father used to gamble. A person came to the house and sought the repayment of a debt. They became aware that his father had a lot of debt; this also affected his uncle and aunty. They had to move out of Taipei.
iii.From the age of 19 the applicant started to live by himself. He had to escape the local gangsters to whom his father owed debts. When he went to university, some gangsters discovered the place where he lived and he had to move again.
iv.He moved to Yilan but after several years was again found by some gangsters. Both his father and uncle have a high level of debt, and engaged in cheating behaviour. Because of this he was interfered with by some of these people.
v.The gangsters came to the place that he was working every day and only left when he made the promise that he would pay something to them. Sometimes he would not and they would use threatening methods and violent ways to deal with his father’s relatives (his aunties and uncles). He felt very frightened in that situation.
vi.People who were cheated by his father and uncle made phone calls on and off to inquire as to his father’s whereabouts. They influenced his work and life. They would shout at him but he could do nothing about it.
vii.After seeing the cruel and inhuman methods of asking for the debt he ceased contact with his father, and his messy life cleared a bit. But no matter how he tried to stay away from the gangsters, they could always find him. It was only when he obtained his Working Holiday visa that he could “feel some quiet time”. He did not wish to return to Taiwan, he was too afraid about what had happened.
The applicant did not undergo an interview with the delegate of the Minister. In their decision record, a copy of which the applicant has provided to the Tribunal, the delegate notes that the applicant was granted his first Working Holiday visa on 15 December 2015 and that he arrived in Australia [in] January 2016. On 29 December 2016, the applicant renewed his Working Holiday visa and he departed Australia in October 2017 and returned again in November 2017.
The Tribunal received an application for review from the applicant on 14 May 2018. With his review application the applicant submitted a copy of the decision record of the delegate. The applicant has provided no further documents or submissions to the Tribunal to support the review application.
The applicant appeared before the Tribunal on 16 December 2021 via MS Teams video to give evidence and present arguments. The hearing was held during the COVID-19 pandemic, and the Tribunal determined that it was reasonable to hold the hearing via video having regard to the circumstances of the applicant and the Tribunal’s objective of providing a mechanism for review that is fair, just, economical and quick, and the delay to the matter if the hearing was not conducted by video.
CONSIDERATION OF CLAIMS, FINDINGS AND REASONS
Nationality
It is accepted that the applicant is a national of Taiwan on the basis of his Taiwanese passport submitted to the Department and his oral evidence. The Tribunal will assess his claims on that basis. The Tribunal further accepts that he does not have the right to reside in any country other than Taiwan. The Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act, and that Taiwan is the receiving country for the applicant for the purposes of s 36(2)(aa).
Does the applicant have a well-founded fear of persecution and is the applicant a refugee?
The mere fact that a person claims to fear 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, an applicant’s claim 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.
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 the 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: s 5AAA of the Act. 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 169–170.
The Tribunal found considerable discrepancy between the evidence of the applicant at hearing and his initial written claims. It is not satisfied that he had a satisfactory explanation for these discrepancies or additional embellishments that the Tribunal considered that he added at the hearing. Furthermore, the Tribunal was not satisfied that the claims of the applicant were supported by independent country information. Ultimately, considering the totality of the material before it, the Tribunal is not satisfied that key elements of the applicant’s claims are credible. The reasons why the Tribunal has reached these conclusions are discussed below.
Firstly, on the evidence presented by the applicant at the hearing, his first experience with gangsters in Taiwan occurred after he finished university, which, according to his visa application, was around [specified year]. He did not mention gangsters coming to his home when he was living with his grandmother and uncle before he started university. In fact information about this incident was completely absent from the applicant’s initial timeline of events. When offered the opportunity to explain the omission, the response of the applicant was an assurance that this event had also occurred and he conceded that the timing and description of the event might not exactly match his written claims. The Tribunal did not accept this explanation. The claims about gangsters coming to his home before he left for university were totally absent from his initial oral evidence; it was not merely a matter of a different description or timing. The omission undermined for the Tribunal the reliability of the applicant’s claims.
Secondly, at the hearing the applicant told the Tribunal that he was sort of assaulted in relation to his father’s debt. This happened around the time he graduated from university in Taipei; some gangsters wanted to teach him a lesson, and when he first encountered them he ran away and went to his mother’s place. When asked what was done to teach him a lesson, the applicant claimed that he was kicked and beaten. The applicant omitted from his written claims any mention of a beating at this time. Further, when offered the opportunity to explain the omission the applicant did not address the matter. The Tribunal does not accept the veracity of the evidence of the applicant and the claims that he was beaten at this time.
Thirdly, the next incident that the applicant told the Tribunal about was a phone call from the gangsters after he finished his military service. This was the only other incident initially described by the applicant in Taiwan. He said that for the whole year before, he was not contacted because he was unable to access his phone while on military service. The Tribunal does not accept the claim that the applicant was uncontactable for a year as plausible. Further, it was only when challenged as to the infrequency of events that had occurred in Taiwan at the hearing that the applicant offered the claim that he had frequently received phone calls that he did not answer because he recognised the number. Again, when questioned by the Tribunal as to whether he changed his number, the applicant appeared to tailor his evidence and said that even if he did so the gangsters continued to find him. These particular claims had limited similarities to those set out in his written claims and it was considered that the applicant was tailoring his evidence on the run in order to achieve a positive migration outcome.
Fourthly, the applicant made no mention in his initial oral evidence to the Tribunal of gangsters coming to his place of work every day. In fact his oral evidence initially was that he was not approached in person other than the time he finished university. When asked to explain the omission, the applicant said that there might have been some errors when he was writing the statement. He told the Tribunal that he meant that he learnt about the situation and those things were happening so he had to leave Taiwan. The Tribunal was uncertain at this stage whether the applicant was maintaining his claims that he was approached every day at work, but in any event, the omission from his initial oral evidence at the hearing further demonstrated to the Tribunal that his claims about his experiences in Taiwan may not be accurate.
Fifthly, although the applicant had initially suggested that there may be errors in his written claims about gangsters attending his work every day, when asked about his written claims that he had paid money to the gangsters, and that he could not pay the bulk of the debt but gave a few thousand each time, the applicant maintained that this had occurred. This shifting nature of the applicant’s evidence appeared to demonstrate that he was making up the information about his experiences on the run.
Sixthly, when confronted with this shift in his evidence about gangsters attending his workplace and payments he made to them, the applicant did not answer the direct question about how many times he made payments to gangsters. His response to the Tribunal was that the first time he was confronted after university was the most important, and that was the event that gave him the most fear. The applicant’s inability to address direct questions about his actual experience further demonstrated to the Tribunal that his claims were not accurate. Further, the applicant was most fearful in July 2013, and the Tribunal notes that there was a considerable delay between then and when he departed the country in January 2016. On his initial evidence there was little that occurred in the intervening period.
Seventhly, the applicant had set out in his written claims that he was pursued not only by gangsters but other people. Any reference to other people, and these people harassing him, was omitted initially from his evidence at hearing. When the Tribunal put this to him, the applicant said that because his father owed money to the gangsters he found ways to cheat people around him for money. These people also wanted their money back and they contacted the applicant to harass him. He did not mention it because most of the risk came from the gangsters; the other people could not really take any direct action against him. The Tribunal did not accept the explanation and instead attributes the omission to the probability that his presentation of past events in Taiwan has been manufactured to achieve a satisfactory migration outcome.
Eighthly, the applicant initially told the Tribunal that gangsters were pursuing him as he was a member of his father’s family, and they wanted to put pressure on his father to come out of hiding and pay the debt. It was only when challenged by the Tribunal as to why the police would view his harassment from gangsters as a civil matter that the applicant offered the further claim that his signature was allegedly added to loan documents with the gangsters by his father without his permission. The applicant also made no reference to being a party to any loan documents entered into by his father in his written evidence. It is reasonable to expect that the applicant would have paid careful attention to the reasons he was seeking protection when he set out his claims in his statement, and his explanation to the Tribunal that he did not deliberate on these matters is not accepted. When asked about his financial circumstances when the gangsters approached him around the time he finished university, his evidence was that he had paid for his own education; he was working part-time in a [business]. He said that he did not have capacity to service a loan and it is not accepted that his presence on loan documents would reasonably add any value. The addition of this late claim further demonstrated to the Tribunal that the applicant was manufacturing evidence about his past experiences in Taiwan.
Ninth, although the applicant was provided with the opportunity by the Tribunal at the hearing to provide evidence about the gambling claims of his uncle, and the risk this posed to him, the applicant was unable to provide to the Tribunal any level of detail which was considered consistent with actual lived experience. He offered only general oral evidence that his uncle also had gambling issues and made vague allusions to harassment and possibly harm that his uncle had encountered from gangsters, without any specific details. Again, this demonstrated to the Tribunal that the applicant was not providing details about his own personal experiences.
Tenth, the Tribunal places considerable weight on the fact that the applicant returned to Taiwan for several weeks in October and November 2017, and in addition suffered no harm or incident relating to his father’s debts. If the applicant genuinely believed that gangsters were waiting for him to service the debt, and that they would pursue him and find him anywhere in Taiwan, it is not accepted he would have voluntarily returned to his home country at this time. The Tribunal does not accept the explanation of the applicant that he had to return to Taiwan to assess the situation. On his evidence, his assessment comprised of a conversation with his grandmother. It is not accepted that he was unable to obtain information from his grandmother by phone, email, mail or any means other than attending Taiwan in person. The applicant could have made these enquiries through other family members, such as his [sibling], with whom he claimed to be in regular contact, or friends. If the applicant genuinely believed that he was at a real risk of serious harm, it is not accepted that the applicant would have returned to Taiwan voluntarily between October and November 2017, and the fact that he did demonstrates to the Tribunal that he did not have any genuine fear of harm.

Eleventh, the concerns about the reliability of his claims were further compounded for the Tribunal by the considerable delay in the applicant applying for protection, a delay of almost two years after his initial arrival in Australia. The Tribunal does not accept the explanation of the applicant that he did not know about the option of a protection visa until shortly before his application was lodged. The Tribunal does not accept the veracity of the applicant’s evidence that it was only when his visa was coming to an end that he started to look into these matters. The applicant told the Tribunal that the fact that he travelled to Australia was so that he could avoid harm because he was very fearful of the gangsters. If this was the case, it is expected that the applicant would have researched his visa options at a significantly earlier opportunity, if not shortly proximate to his initial arrival, then certainly before he applied for a second Working Holiday visa after his first year in Australia. The delay in the applicant lodging an application for a protection visa further demonstrates to the Tribunal that the claims of the applicant are not reliable, and the Tribunal places some weight on this delay.
Twelfth, the applicant told the Tribunal he did not report the beating he received from the gangsters to the police in 2013 as the police would not do anything about these types of matters in Taiwan. He maintained that the authorities in Taiwan would view the matter only as a civil issue, which is a claim not supported by country information. Particularly, the Tribunal notes that Taiwan has a low crime rate and one of the lowest violent crime rates in the world.[1] There are laws addressing both usury and organised crime.[2] Usuary, or debts to loan sharks, is a commonly reported crime, and loan sharks have been targeted in broad crackdowns against criminals.[3] The activities such as monitoring, intrusion upon, threats, intimidation and actual harm in an effort to instil fear are all criminalised.[4] The police are effective and the courts are independent, fair and generally free of corruption.[5] The Tribunal is not satisfied from these reports that the actual physical assault he claimed to have received after completing university would not be viewed as a crime, nor the harassment, kidnapping or further assaults he claims to fear.
[1] ‘Taiwan 2020 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), US Department of State p.1, 17 March 2020
[2] The Organized Crime Prevention Act, Government of Taiwan, 3 January 2018
[3] ‘Police detain 350 in crackdown on organised crime” Taipei Times, 4 May 2019
[4] ‘Criminal Code of the Republic of China’, Government of Taiwan, as amended to 15 January 2020 art. 344
[5] “BTI 2020 Country Report: Taiwan” Bertelsmann Stifling, 29 April 2020, p10
Thirteenth, when asked to comment on country information suggesting that effective protection is available to people in Taiwan being harassed by loan sharks or their agents, consisting of relevant criminal laws in place addressing loan sharking, a reasonably effective police force and an impartial judicial system, the applicant maintained that he was just a common citizen, and he had no means of reporting the matter, not like someone rich and powerful. Other than repeating that it is just considered a civil matter, the applicant had no satisfactory explanation as to why he could not approach the police either in person or by phone and report any threats or his past assault. The Tribunal further notes that a recent survey, carried out by the Crime Research Centre of National Chung Cheng University, indicated that the efforts to maintain the social order and fight crimes by the police are highly praised and supported by the public.[6] The "2021 Annual Survey of Taiwan Citizen’s Satisfaction with Justice and Crime Prevention Policies", set out that 82.5% of the respondents were satisfied with the police in maintaining public safety, and satisfaction has remained at over 80% in three consecutive years. These results are not reflective of a police force that is unapproachable or only effective for the rich and powerful. It is considered that the applicant’s claims that he would lack the ability to report any concerns for his safety and that the police are not approachable for ordinary citizens in Taiwan lacked any corroboration.
[6] National Police Agency, Ministry of the Interior, ‘Public Satisfaction with the Police is over 80% in 3 Consecutive Years Citizens Support Drug Enforcement, Fraud Prevention and Various Measures by the Police’ dated 25 Feb 2022
Finally, even if the applicant was threatened by gangsters as he claims, which the Tribunal does not accept, on the country information, the Tribunal would find that Taiwan has an appropriate criminal law system, the police force is effective and that it has an impartial judicial system. The Tribunal is satisfied that the State is willing to provide protection to the applicant, it is available and the protection provided is durable.
Therefore, considered together, the multiple concerns regarding the evidence of the applicant, as outlined above, lead the Tribunal to conclude that he has not been a reliable or credible witness regarding his experiences in Taiwan, and the reasons that he fears harm if he was to return. The Tribunal is not satisfied that his father or uncle have gangsters or other people pursuing them because of a gambling debt, that they have pursued the applicant because of his relation to his father, or because he listed as a guarantor on loan documents. It is not accepted that the gangsters ever approached the applicant or harmed him, nor is it accepted that he made payments to them or promises to make payments to them. It is not accepted that gangsters have any interests in the applicant due to gambling debts of his father, uncle, or anyone else. It follows that the Tribunal is not satisfied that, if the applicant returns to Taiwan now, or in the reasonably foreseeable future, he will be forced to repay his father’s debts, or he will be harmed, kidnapped or killed by gangsters or anyone else because these debts have not been repaid. In the Tribunal’s view, the applicant has fabricated these claims for the purposes of seeking a protection visa in order to remain in Australia.
For the above reasons, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm in Taiwan for the reasons he has claimed or due to his race, religion, nationality, membership of any social group or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
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).
For the reasons given above, the Tribunal is not satisfied that the claims of the applicant to have experienced harm in the past from gangsters due to his father’s debts, the debts of his uncle or his signature on any loan documents are factual or credible. In addition, the Tribunal is satisfied that the applicant could obtain protection from the authorities in Taiwan such that there would not be a real risk of significant harm. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Taiwan, there is a real risk the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Penelope Hunter
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2349

25 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies