1815512 (Refugee)

[2024] AATA 4076

1815512 (Refugee) [2024] AATA 4076 (13 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr David Ho (MARN: 9903257)

CASE NUMBER:  1815512

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Rebecca Lee

DATE:13 September 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 September 2024 at 5:27pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from father – applicant forced to work and earnings taken and gambled, and applicant and mother hit and abused – applicant moved out and returned – passage of time and father’s age and health – relocation and state protection – delay in applying for protection – applied after student visa refused and affirmed – incomplete information in application and discrepancies between written and oral claims and evidence – late claim of fear of harm as homosexual woman – relationships with women and men – questioning by police and discrimination at work – country information – same-sex marriage now allowed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB (2013) 210 FCR 505

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1992) 34 ALD 347

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            

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant first arrived in Australia [in] October 2015 as the holder of a Subclass UD-601 Electronic Travel Authority visa and had not departed prior to the first hearing.[1]  The applicant was refused a student visa on 2 May 2016, which decision was affirmed by the Tribunal [in] September 2016 (after the applicant had failed to provide requested medical evidence).[2]

   [1] Movement record - 13 March 2024.

   [2] Delegate’s Decision.

3. The applicant, who claims to be a citizen of Taiwan, applied for the protection visa on 13 October 2017.

4. The applicant did not provide the Tribunal with a copy of the delegate’s decision. The delegate refused to grant the visa on the basis that there was no information before the delegate that the applicant would be targeted for one her race, religion, nationality, membership of a particular social group or political opinion nor to suggest that they would be targeted by their father or that the Taiwan government would fail to provide applicant with the same degree of protection as that afforded to any of its other nationals.

5. The applicant appeared before the Tribunal on 9 April 2024 and 11 September 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearings.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CLAIMS AND EVIDENCE

   Before the Department

8. According to information contained in their protection visa application, the applicant is a [Age]-year-old Taiwanese citizen who was born in Taichung City, Taiwan. Further, the applicant:

   ·            belongs to the Chinese ethnic group and was born to Taiwanese citizens;

   ·            is Buddhist;

   ·does not have other family members (including parents) in or outside Australia and is not in contact with relatives outside Australia;

   ·lived in Taichung, Taiwan from [Year] to August 2015 (having been asked to provide their residential address history for the last twenty years);

   ·            had never studied;

   ·had never been employed, though their claims for protection suggested otherwise;

   ·            obtained their Republic of China (Taiwan) passport [in] 2015;

   ·            can speak, read, and write in the Mandarin and can speak the English language;

   ·            had never been married;

   ·            had not undertaken any overseas travel in the last 30 years;

   ·said they left Taiwan [in] May 2017 and arrived in Perth the same day;

   ·was making their own claims for protection and did not receive assistance from an interpreter or anyone else to complete the application.

9. In relation to their claims for protection, the applicant claimed they left Taiwan because her father abused her. He hit her until she was bleeding. The applicant did not have an opportunity to study, because she was forced to work by her father, he then took her earnings and gambled. The applicant claimed that when the father lost at gambling, he would drink and hit and abuse her. The father would drink a lot and when drunk, abuse her and her mother.

10. The applicant said she sought help from the Taiwanese police, but they said she had no proof and so they did not assist. The applicant said she tried to move but her father would still find her in Taiwan. She claimed that if she returned to Taiwan, she would continue to be hit and abused by her father and would have to make a lot of money for him.

11. The protection visa application contains a warning that giving false or misleading information is a serious offence. In submitting the application, the applicant declared that they had provided complete and correct information in every detail on the form and had read and understood the information provided to them in the application, which included that the applicant must provide all the details about why they were seeking protection and that the applicant may not be given another opportunity to present their claims as a decision may be made on the information in the application.

    Protection visa application interview

12. The Department did not invite the applicant to attend an interview.

    Before the Tribunal

    The review application

13. On 25 May 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

14. On 28 May 2018, the Tribunal wrote to the applicant acknowledging receipt of the review application and stating that if they wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible. The included information sheet advised that if the applicant had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it in as soon they could.

15. On 8 March 2024, the Tribunal sent the applicant an invitation to attend a hearing, which on 2 April 2024 was adjourned for a week.

16. On 26 March 2024, the applicant told the Tribunal that on 31 December 2023 she had been the victim of a domestic violence incident. A partial restraint order was provided but no details of the partner who was the subject of the order were given.

17. On 3 April 2024, the applicant sent an email to the Tribunal saying they did not intend to rely on any documents at the hearing.

    The first hearing: supporting documents and oral evidence

18. At the start of the hearing, the applicant confirmed that all the documents which had been sent to the Tribunal as part of the review process constituted all the necessary documents before the Tribunal. The applicant said there were no other documents.

19. The applicant gave the following oral evidence.

20. The applicant is [Age] years of age and was born in the city of Taichung, Taiwan. Her parents are alive and still together, living in Taichung, but the applicant is not sure where because they moved in the last couple of years. The applicant is in touch with her mother once every several months. Her mother was adopted, and the applicant’s adoptive grandmother was very strict, they were not close. The grandparents passed away over ten years ago. Neither the applicant, nor her mother, are in touch with the mother’s extended birth family.

21. The applicant had [three] siblings, although [one, a brother], passed away at the age of [Age]. She is not in contact with her living other brother, but once in a blue moon is in contact with her sister, who lives in Taichung.

22. The applicant’s family practiced Buddhism when she was little. She left high school at the age of fourteen or fifteen. As the financial situation in the family was not good, for a couple of years she worked in a factory which produced [products 1]. She also attended night school but like her sister did not complete her high school education. One brother attended university, studying [subject] in Taichung.

23. The applicant’s mother and grandmother farmed a rice field, which no longer exists. The applicant’s father used to run a factory producing [products 2], which business failed around the time the applicant was born and the after which the father became a [job task]. The father worked in different cities for different companies. The older brother totally disconnected from the father a long time ago, so the applicant does not know if he works. The sister has a job freelancing in a restaurant and at a factory. The now deceased brother [did job task 1].

24. The applicant left home on and off, for example moving to Taipei for work. After her father retired after turning 60 years of age, when the applicant was about [Age], they lived together.

25. After working at the factory, the applicant [did a job task] for two to three years at a [workplace 1]. Then for seven years the applicant worked at the [workplace 2] in Taipei, starting as an apprentice at the age of 20 and towards the end working in [product] supply. She left the [workplace 2]’s employ for family reasons.

26. Back in Taichung, the applicant waitressed in different [workplace 1]s than before for two years. She stopped when she met her boyfriend, with who she ran a [stand] for three to four years selling [products 3] and then [products 4]. The boyfriend was the [maker], and she was the assistant. Their business not good and their rent was expensive. The couple then took a rest for a couple of months, after which the applicant helped her boyfriend open a small [workplace 1]. The couple were together for about ten years, between the ages of [Age] and [Age] for the applicant. The [workplace 1] closed a couple of years before the end of their relationship.

27. After the [workplace 1], the applicant was a street vendor of [products 5] at the night market in Taichung for about two or three years. The only subsequent work the applicant had since night market, was odd jobs in [workplace 1]s in time to time, because there was a lot going on in the family.

28. Before coming to Australia, the applicant had travelled outside of Taiwan. When she worked at the [workplace 2], she had twice attended a fair in [Country 1] for about 5 days. She had also had six-day holiday to [Country 2] with her then boyfriend, which she had assisted in the [workplace 1].

29. After the applicant arrived in Australia, she has worked in a [workplace 1] for several months. She stopped in order to study language. Probably two to three months later, the applicant had a [job task 2] job at a friend’s place for a few months. She then rested for a little while, after which she [did job task 3] at a friend’s [workplace 3] for half a year. She finished there several years ago and did not work after that. The applicant was not working at the time of the hearing. The applicant said she could not find proper jobs because she had no work rights, and so she was working odd jobs, such as [doing job task 2] or taking on demand bookings for [job task 3].

30. After the applicant moved back from Taipei, she lived with her parents for three years. Her siblings were not at home at that time. The applicant moved out again for a couple of years with her boyfriend, but rent was quite expensive, and she ended up moving back in with her parents (without her boyfriend). She did not move out again until she left for Australia. She only ever had two boyfriends in Taiwan.

31. When asked if she fears going back to Taiwan, the applicant said yes because she is worried the family will give her pressure if she returns. The father is an alcoholic and he gambles as well, so when he drinks, he would return home, beat up the applicant and verbally abuse her. When asked when that started, the applicant said the situation was there before, but it got worse after the father retired. The applicant explained that he often gambled, and when he lost, he would swear at people and ask the applicant for money. After he drank, the applicant was kicked, beaten up and pushed on floor by her father. He smashed things around, and the applicant suffered a lot. The applicant did not go to hospital, except when it was really bad, she attended the local small clinic. She did not attend many times. The applicant’s injuries were external bruises and her organs hurt from when he pushed her on floor and when he would pull and knock her against the wall.

32. The applicant did not report these incidents to the police because she was afraid that if she did, he would hurt her even more. The applicant was also worried he might go to jail, and he is her father. The father also hurt the applicant’s mother, but not that much because if he beat her up then the mother could not cook or do the housework.

33. When asked why after she had moved out to be with her boyfriend, she moved back into the family home at the age of about [Age] years of age, the applicant said her mother had a bad foot and after a fall, she could not walk and needed assistance. When asked why the applicant did not move back out when her mother became better, the applicant said she had had a disagreement with her boyfriend regarding work. When asked why she did not move somewhere else, the applicant said she was worried about her mother being abused by her father. The applicant did not tell her boyfriend anything about this, other than the fact her father asked her for money, because he might think she was from a problematic family.

34. The applicant gave her father money. When would depend on when he lost money gambling. He would ask a lot and beat her up until she had no choice but to give him money. It was worse when he was drunk, and she had to pay back the debts for him.

35. The applicant’s father is now [Age] years old. His health is so-so. When ask at the age of [Age] if she still fears him now the applicant said yes. She has not contacted her father since she came to Australia at the age of about [Age]. The applicant explained she came to Australia to escape being treated that way by her father. When asked about the fifteen years she had spent living at home before coming to Australia, the applicant said she was worried that her father would abuse her mother.

36. The applicant decided to come to Australia just a few months before she arrived. When asked what triggered her to leave home despite being worried about her mother being abused, the applicant said first, she had suffered to the extent that she could not take any more and she had no more money to pay back her father’s debt. Secondly, the abuse got worse and thirdly, her mother advised her to leave. When asked why not move to another house in Taichung or move back to Taipei, the applicant said she was thinking that she could stay further away from her family by travelling to Australia and learn new things in this country. If she had remained in Taiwan, then she feared her heart would soften she would go back to the family home and she would be beaten up again.

37. When asked if there was anything else the applicant would like to tell the Tribunal about why she feared going back to Taiwan, she said it was just about domestic violence.

38. When the Tribunal raised the country information about domestic violence and state protection  below, the applicant did not initially wish to comment. When the Tribunal raised its concern that if the applicant returned to Taiwan, she would be able to live anywhere in Taiwan and would not need to return to her parent’s house in Taichung plus she could have state protection, the applicant asked to be given an opportunity to stay in Australia. She said that if she returned, it would be a bad situation for her mother. No matter what she did, if she sought state protection or her father went to jail, it would not be good for her mother. If they went to the Protection Centre, her father would know what happened and keep abusing the applicant’s mother.

39. When the Tribunal again commented that the country information suggests the Taiwan authorities are providing effective protection for people at risk of harm from domestic violence, as there are appropriate criminal laws addressing domestic violence; there is a reasonably effective police force and an impartial judicial system, the applicant again had no comment.

40. When asked who prepared her protection visa application, the applicant said an agent who has since retired and whose name she could not remember. When asked if she saw the application before it was submitted, the applicant said she did not because she communicated with the agent by phone and so was trying to read email correspondence on the phone. When asked how she knew what was being submitted was correct, the applicant said she received updates because she was being copied in. When asked if she had been aware that she declaration that she had provided complete and correct in the application, the applicant nodded and said she told the agent what had happened, but he wrote the actual application, so the applicant was not sure of the exact details. When asked if she had had chance to check it was correct, the applicant said the agent sent a message to her but before she had a proper chance to check, the phone was dead and when the phone was restored all the old messages were gone.

41. The applicant forgot to ask for another copy of the application, but when she did the agent said he had retired, and she has not been able to get hold of him since then. When asked about arriving in Australia [in] October 2015, but applying on 13 October 2017, the applicant said she delayed in applying because she did not know about the availability of the protection visa, and she applied for a student visa instead. The applicant explained that police had attended her friend’s home, where she was living at the time, and found drugs in the fridge. The applicant said they were hers, she does not know why, and the same day the applicant’s student visa was refused. The friend and the applicant went to see a lawyer, accepting the advice to admit the offence and accept a fine rather than fighting it in court. The applicant said they were not her drugs, they belonged to the friend’s tenants.

42. The Tribunal noted that in the protection visa application, the applicant claimed that she left Taiwan [in] May 2017 to come to Australia on [the same day] because she was being harmed by her father and not protected by the State. During the hearing she had also given her age of travel which suggested it was in 2016 or 2017. However, the Department’s movement records, and the Delegate’s Decision indicate that she arrived in Australia [in] October 2015 and applied for a student visa which was refused on 2 May 2016, which decision was affirmed by the Tribunal [in] September 2016 (after she had failed to provide requested medial evidence). The Department’s records show the applicant applied for the protection visa on 13 October 2017.

43. The Tribunal said this information was relevant to the review because it may cause the Tribunal not to accept that the applicant left Taiwan or needed protection because of her father and the lack of protection from the State. It could also cause the Tribunal to doubt the truthfulness of the applicant’s evidence and to consider that the claims lack credibility, and as such, the Tribunal may not accept that the applicant has a well-founded fear of persecution if she returns to Taiwan or that there is a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Taiwan. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.

1. When asked if the applicant would like some time to comment or respond to this, the applicant said she was not really in the headspace to comment.

2. When the Tribunal noted that the protection visa application does not list parents or siblings, the application said there was a miscommunication with the agent. At the time of the application, it was correct to say she was not in communication with relatives outside of Australia. She had told her mother she was coming to Australia, and she said after she arrived, she sent quick messages to say she was safe in Australia to her mother. When it was raised that the application did not mention the applicant living in Taipei, suggested that she had never studied or been employed, said the applicant had referred her father to the police, had tried to move within Taiwan to get away from her father, and had not travelled overseas in the last thirty years, the applicant said the inconsistencies in the application were caused by poor communication between the applicant and the agent. Their communication had been mostly over the phone. The applicant did not look at the application when it was lodged. After the agent submitted the application, he sent a message but because her phone was broken, she lost all the messages.

3. When asked if there was anything else she would like to tell the Tribunal, the applicant said she probably had made a mistake of not looking at the application before it was submitted and there were miscommunications between her and the agent which has caused some problems. She was just hopeful the Tribunal would consider giving her an opportunity if possible.

4. The Tribunal also raised the fact that the protection visa application was submitted by an email address of the applicant which reflected her name and birth year as a self-registered user, and no assistance was noted, nor agent listed. The applicant said she had no email address when the form was lodged and the agent used an email address, which was synchronized to her phone.

5. The applicant also said she had made a mistake in not having effective communication with her agent, and when he retired, she should have shown more initiative and addressed things more promptly. She is afraid of returning to Taiwan for the reason she explained earlier. If she had the chance, she would like to stay in Australia, study and make a contribution, perhaps in aged or animal care.

   Post First Hearing

6. At the end of the first hearing, the Tribunal allowed the applicant until 19 April 2024 to make submissions to explain the discrepancies between the protection visa application and the applicant’s evidence at the hearing.

7. On 19 April 2024, the applicant’s representative provided written submissions which in part submitted that the applicant explained to them after the hearing that her previous agent did not care to ask her to provide those details and it was believed that the previous agent may have not completed the protection visa application professionally with adequate time spent to put in all the details correctly.

8. The written submissions also claimed that the applicant’s real claim for protection was not her father’s domestic violence but because of her membership of the LGBT community. No statutory declaration or signed statement of the applicant was provided.

9. On 27 August 2024, the Tribunal sent the applicant an invitation to attend a second hearing.

   The second hearing: supporting documents and oral evidence

10. At the hearing, the applicant handed the Tribunal several photos of the applicant with other women, which she said were of her with girlfriends and they were all taken in Australia. The applicant has no photos of her with previous relationships in Taiwan, because when she came to Australia, she lost the phone’s memory card and her phone from Taiwan also broke.

11. When asked what the applicant feared if she returned to Taiwan, the applicant said that in addition to the domestic violence claim she made at the last hearing, the applicant said she is a lesbian who is into women. When the Tribunal asked why that meant she feared going back to Taiwan, the applicant said it was because of her family, if they knew about the situation. The applicant has difficulty telling her family about her sexual orientation and says she simply cannot tell them. The applicant has a circle of friends who know the secret.

12. The applicant said in Taiwan she would face discrimination because of her sexual orientation. It would also cause difficulty in job hunting and trouble living life there in general. By discrimination, the applicant meant others looking at her differently, using judgmental eyes. Further, she suspected the family or friends of her then girlfriend, caused the police to come to her place on multiple occasions, which threated her life. This was both when she was living at her parent’s place and when she rented a place in Taichung.

13. When the police came to the house, the applicant told her parents she had a quarrel at work and the police had come to investigate. They lived in a high rise, and the police only came to the bottom of the building. The police visited the applicant’s parent’s home three times and the rented place five to six times. When asked what the police said to the applicant, the applicant described the police saying that the kind of things she did was unethical and they suspected she had mental health issues, which may be the reason she was going out with women. The police said that if the applicant kept doing that, they would prosecute her. When asked what she would have been prosecuted for, the applicant said she was young at the time, and she did not understand the laws around it. She felt as if the police were threatening her, as she had this feeling that she was being accused of seducing someone. When asked why she felt her life had been threatened, the applicant said she thought she might have been imprisoned. When asked how old she was when the police came around, the applicant said that she was between the ages of 16 and 20 years when it happened frequently.

14. The applicant first realised her sexual orientation when she in high school. She had her first relationship with a woman, which lasted about two years, with a woman around the age of 16 or 17. Her next relationship at the age of 18, was with a woman, which lasted 2 years. She does not know if her family knew of these two relationships. Her next relationship at the age of 20, was with a man because she feared the family started to suspect that she was into women. This relationship was on and off for up to 5 years, and when they were not together the applicant would still see other women.

15. In Taiwan overall, the applicant said she probably had four relationships with women. She lived a woman once very briefly. Mostly they lived in their own places. Friends knew about these relationships. When asked if she experienced any difficulties in Taiwan dating women, the applicant said people around them looked at her and her girlfriends differently, with a judgemental eye. This was when the applicant was in public places with her female partner in Taichung and Changhua. Her then girlfriend’s family tried to stop the applicant’s and the girlfriend’s interaction when they had suspected a romantic relationship.

16. The applicant was [Age] years old when she first travelled to Australia. When asked if she had had any interactions with the police between the age of 20 and when she travelled to Australia, the applicant said a couple of times, but they did not find her because she had moved to another place. This was when she was in her [Decade], when she had moved to a place in Changhua, being a small town next to Taichung, which is seen as part of Taichung. She lived there altogether for 3 years in 3 different places.

17. Since the applicant has arrived in Australia, she has had relationships with three or four women and one man, the latter being the person who had committed the act of domestic violence at the end of last year.

18. When asked to explain what she feared in being discriminated against  job wise in Taiwan, the applicant said for example, if she managed to find a job, when her boss and colleagues realise her sexual orientation, she will not be accepted and she thinks she will be fired.

19. When asked why the claim that she was a member of the LGBT community was not raised in the protection visa application, the applicant said back then she was worried about the agent knowing and so she did not mention it. Why asked why she did not raise it at first hearing, the applicant said that for her in Chinese culture, it is a shameful thing,  and she did not know how to talk about it.

20. The Tribunal raised the fact that the Tribunal is to draw an inference unfavourable to the credibility of a claim raised that was not raised before the delegate’s decision was made if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised before the delegate’s decision was made.

21. The applicant said she did not feel comfortable telling her circle of friends about her sexual orientation because she feels it is a shameful thing. The applicant said she has told a few more than a dozen people in her whole life. She has told some colleagues at work and mutual friends in Taiwan and Australia.

22. When the Tribunal summarised the work history the applicant had provided at the last hearing and asked if the applicant had had any difficulty in those jobs because of her sexual orientation, the applicant said ‘yes’. She said she had been dismissed from her work at a [workplace 1], when her colleagues and her boss had found out about her sexual orientation, because they see it as shameful. When ask why she did not tell the Tribunal at the last hearing, the applicant said because back then she dared not say she was a lesbian, and she has this time around built up her courage to tell this to everyone.

23. When the Tribunal raised the country information about the situation for LGBT people in Taiwan (below) and said based on this information there did not seem to be a real chance or real risk of harm in Taiwan because of her same-sex attraction, the applicant said that had not been her experience. When the Tribunal raised its concern that funny looks or being discriminated against was not serious or significant harm, the applicant referred to the violence from her family and said she had been discriminated against to the point people had verbally abused her. This tends to happen when her work is on track, but then people discover she is a lesbian and then judge her and fire her, which has caused difficulty in her life. The verbal abuse was people saying unpleasant things, for example calling her gay to her face and pointing fingers. She was close to [Age] years old in Taichung the last time this happened. She was at work in a [workplace 1] and displayed intimate interactions with her girlfriend, and a few people came over and swore at them.

24. The applicant guesses her sister knows her sexual orientation, but she has never talked to her about it. She guesses because when they were younger and chatting, she thinks the sister sensed the applicant was resistant to men and that she saw their intimate actions when the applicant used to take girls back home. The applicant said her living brother does not know.

25. The Tribunal repeated its concern raised at the first hearing that if the applicant returned to Taiwan, she would be able to live anywhere in Taiwan and would not need to return to her parent’s house in Taichung plus she could have state protection, as there is a reasonably effective police force and an impartial judicial system. When the Tribunal said the applicant could live her life as a member of the LGBT community with no risk of harm avoiding her parents, and the police would be there to protect her in any event, the applicant said if she returned to Taiwan, her parents would expect her to bring money back to them and then they will discover her sexual orientation through her sister. She would like to see her sister when she returns, but she worries that her father will take it out on her mother.

26. When asked if the sister had not told the parents until now, why would she tell them about the applicant’s sexual orientation in the future, the applicants said because in the past few years, the sister has developed a drinking problem and she is basically a big mouth after she drinks. The applicant thinks that whether what she says is factual or not, it will spread in the family.

27. The applicant’s representative submitted that even with the legal protections, Taiwan is not uniform, such that Taipei is civilised, but southern Taiwan is not that modern, so in people’s hearts they may not accept the applicant, because she is a member of the LGBT community, and she may be subject to discrimination even if they may not harm her physically.

    Country information

28. The law criminalises domestic violence. Authorities effectively enforce laws criminalising domestic violence.[3] Convicted domestic violence offenders are typically sentenced to less than six months in prison.[4] The law allows prosecutors to investigate complaints of domestic violence when the victim has not filed a formal complaint.[5]

    [3] 'Country Reports on Human Rights Practices for 2022 - Taiwan', US Department of State, 20 March 2023, pp.8-9, 20230321161004

    [4] 'Country Reports on Human Rights Practices for 2022 - Taiwan', US Department of State, 20 March 2023, p.9, 20230321161004

    [5] 'Country Reports on Human Rights Practices for 2022 - Taiwan', US Department of State, 20 March 2023, pp.8-9, 20230321161004

29. State protection is available to victims of domestic violence. The revised Domestic Violence Prevention Act passed in January 2015 expands the definition of domestic violence to include harassment and coercion, and extends the validity of protection orders from less than one year to a maximum of two years.[6] The revised law includes various types of protection orders, including emergency protection orders to safeguard a victim before the commencement of a trial.[7] The government has established domestic violence prevention and victims support services delivered through the Domestic Violence Protection Center.[8] Additionally, a 24-hour women and children hotline is publicly available to provide care, support, counselling, and a referral service.[9]

    [6] 'Domestic Violence Prevention Act', Government of Taiwan, 4 February 2015, art. 15, 20200612155211

    [7] ‘The Law on Domestic Violence and Its Practice in Taiwan’, Hsiao-wei Kuan, Ca' Foscari University of Venice, January 2021, p.28, 20220628170017

    [8] ‘The Law on Domestic Violence and Its Practice in Taiwan’, Hsiao-wei Kuan, Ca' Foscari University of Venice, January 2021, pp.29-30, 20220628170017

    [9] ‘The Law on Domestic Violence and Its Practice in Taiwan’, Hsiao-wei Kuan, Ca' Foscari University of Venice, January 2021, pp.29-30, 20220628170017

30. Taiwan has a low crime rate (1.3 per cent) and one of the lowest violent crime rates in the world (0.01 per cent). Operating within a low-crime environment, the Taiwanese National Police Administration (NPA) is effective and well-regarded. The NPA’s main missions are to carry out police and law enforcement in Taiwan, maintain public order, uphold the safety of its citizens and society, prevent hazards, and promote the welfare of its citizens. The judiciary in Taiwan is independent, with court rulings generally free from political or other undue interference.10

31. LGBTI people have various legal protections. The legal system does not criminalise same-sex sexual conduct between adults.[10] Taiwanese law prohibits discrimination in employment and education based on sexual orientation.[11] The US Department of State report that incidents of violence against LGBTI people are ‘rare’.[12] Freedom House and the US Department of State report that police response to incidents of violence against LGBTI people is ‘adequate’.[13]

    [10] 'Country Reports on Human Rights Practices for 2022 - Taiwan', US Department of State, 20 March 2023, p.13, 20230321161004

    [11]  'Country Reports on Human Rights Practices for 2022 - Taiwan', US Department of State, 20 March 2023, p.13, 20230321161004

    [12]  'Country Reports on Human Rights Practices for 2022 - Taiwan', US Department of State, 20 March 2023, p.13, 20230321161004

    [13] 'Freedom in the World 2023 Taiwan', Freedom House, July 2023, F4, 20230725102014; Country Reports on Human Rights Practices for 2022 - Taiwan', US Department of State, 20 March 2023, p.13, 20230321161004

32. Same-sex marriage is permitted between Taiwanese nationals but before 2023 was only permissible between transnational couples where the spouse is from a country where same-sex unions have been legalised.[14] Now:

    …this changed in January 2023 when Taiwan's Ministry of the Interior issued Ordinance No. 1120240466 (2023), notifying local governments that the Act for the Implementation of J.Y. Interpretation No. 748 (2019) extends to transnational same-sex couples. In the ordinance, the Ministry states that “two persons of the same gender shall not be denied the ability to establish an intimate and exclusive permanent union for the purpose of living together”. This means that same-sex couples consisting of one Taiwanese citizen and one foreign national can now register their marriage, regardless of the legality of same-sex marriages in the foreign partner's jurisdiction. This law extends as well to partners from Hong Kong and Macau but does not encompass “cross-strait” couples, which are governed by different regulations.[15]

    [14] 'Amnesty International Report 202/23: The state of the world’s human rights', Amnesty International, 27 March 2023, p.355, 20230328142801

    [15] 'Laws On Us: A Global Overview of Legal Progress and Backtracking on Sexual Orientation, Gender Identity, Gender Expression, and Sex Characteristics', ILGA World, 30 May 2024, p.160 20240605161810

    CRITERIA FOR A PROTECTION VISA

33. 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.

34. 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.

35. 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).

36. 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.

37. 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

1. 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

2. The applicant travelled to Australia on a Taiwanese passport and claims to be a Taiwanese citizen. The delegate had no concerns about their claimed identity or nationality, and there is nothing before the Tribunal which raises a concern. The Tribunal finds the applicant is a citizen of Taiwan and has assessed their protection claim accordingly.

   Applicant’s responsibility

3. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

4. It is well established that the Tribunal is not required to accept uncritically any, and all allegations made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348).

   REFUGEE GROUNDS

5. The applicant’s broad narrative of alleged facts about her father was consistent between the protection visa application before the delegate and the first hearing before the Tribunal. The claim was that there was a real chance of serious harm from her abusive father in the reasonably foreseeable future, and the state would not provide effective protection, if she returned to Taiwan.

6. At the second hearing, the applicant made a new claim that there was a real chance of serious harm because she is a member of the LGBT community.

7. The Tribunal found the applicant to be overall credible, because of the manner in which she spoke and her consistency during the hearings. She also seemed better composed during the second hearing, presenting as if she found it easier to express herself than during the first hearing.

8. The Tribunal finds that the applicant arrived in Australia in October 2015, based on the movement records. There was a delay of two years in the applicant making the protection visa application. The Tribunal finds that the applicant only made the protection visa application after the Tribunal affirmed the decision to not grant her a student visa, based on when the Tribunal made that decision and when the protection visa application was made. The Tribunal accepts that the applicant did not know of the existence of the protection visa when she arrived, based on what she said during the hearing.

9. The Act requires that an application provide no incorrect answers (s 101(b)) and that an applicant correct incorrect answers in an application ‘as soon as practicable’ (s 105(1)). The Tribunal finds that there are some discrepancies between what was stated in the protection visa application and the movement records and the evidence given by the applicant at the first hearing, being as follows:

   (a)the application said ‘no’ to the question whether the applicant had any parents or siblings including those who are deceased who are in Australia or overseas and whose details had not yet been provided, whereas at the first hearing the applicant mentioned her father, mother and three siblings, one of whom has died. The Tribunal accepts that the protection visa application went on to mention the applicant’s father in the protection claims;

   (b)the application said the applicant had lived in Taichung between [Year] and 2015, and did not list Taipei, whereas at the first hearing the applicant said she had lived in Taichung and Taipei in Taiwan;

   (c)the application said the applicant departed Taiwan and arrived in Australia [in] May 2017, whereas according to the movement records the applicant had arrived in Australia [in] October 2015;

   (d)the application said the applicant had not travelled to any countries in the last thirty years, whereas the applicant said during the first hearing that for work she had travelled to [Country 1] twice and holidayed in [Country 2];

   (e)the application said the applicant had never been employed, whereas during the first hearing the applicant outlined her employment in both Taiwan and Australia;

   (f)the application said the applicant had sought help from the police regarding her father’s abuse, although it said she had no proof, whereas during the first hearing the applicant said she did not report her father’s violence to the police; and

   (g)the application said the applicant had not received assistance in completing the form, whereas during the first hearing the applicant said an agent had assisted her.

10. These discrepancies and the applicant’s failure to correct the incorrect answers in the six and a half years between making the protection visa application until the first hearing in the application, which the Tribunal finds was not as soon as practicable, is regrettable. The applicant did take responsibility during the first hearing for not looking at the application before it was submitted and for failing to take the initiative after the agent retired to follow up on her application.

11. As to the evidence which was before the Tribunal but not before the delegate in relation to the domestic violence claim, the evidence before the Tribunal largely fleshed out the claim which had been made in the protection visa application. The Tribunal accepts, based on what the applicant said during the first hearing, that:

    (a)her father is an alcoholic and he gambles as well, so when he drinks, he would return home, beat up the applicant and verbally abuse her;

    (b)whilst the situation was there before, it got worse after the father retired after turning 60, which is now about [Number] years ago. The father is now about [Age] years old, and his health is so-so;

    (c)he often gambled, and when he lost, he would swear at people and ask the applicant for money. After he drank, the applicant was kicked, beaten up and pushed on floor by her father. He smashed things around, and the applicant suffered a lot;

    (d)the applicant gave her father money. When would depend on when he lost money gambling. He would ask a lot and beat her up until she had no choice but to give him money. It was worse when he was drunk, and she had to pay back the debts for him;

    (e)the applicant did not go to hospital, except when it was really bad, when she attended the local small clinic. She did not attend many times. The applicant’s injuries were external bruises and her organs hurt from when he pushed her on floor and when he would pull and knock her against the wall;

    (f)the applicant did not report these incidents to the police because she was afraid that if she did, he would hurt her even more. The applicant was also worried he might go to jail, and he is her father;

    (g)the applicant’s father also hurt the applicant’s mother, but not that much because if he beat her up then the mother could not cook or do the housework;

    (h)the applicant spent about fifteen years living at home with her parents, before coming to Australia;

    (i)the applicant did not move somewhere else, until she moved to Australia, because she was worried about her mother being abused by her father;

    (j)the applicant decided to come to Australia just a few months before she arrived, despite being worried about her mother being abused, because she had suffered to the extent that she could not take any more and she had no more money to pay back her father’s debt. The abuse had gotten worse, and her mother advised her to leave; and

    (k)if she had remained in Taiwan, then the applicant feared her heart would soften and she would go back to the family home and she would be beaten up again.

12. During the first hearing the applicant stated that she had been assisted in completing the form by an agent and there had been a miscommunication between the agent and herself and her phone had died after the form had been submitted and she lost the information, which the Tribunal does not accept as a reasonable explanation because the protection visa application is the applicant’s responsibility, even if filled out by another person (s 98 of the Act).  As such, the Tribunal is satisfied that the applicant does not have a reasonable explanation as to the discrepancies between the protection visa application and the evidence during the first hearing in relation to the domestic violence claim but finds that this is limited to the fact that the applicant did not seek assistance from the police in response to her father’s violence and did not relocate within Taiwan before travelling to Australia at the age of about [Age].

13. This finding means that the Tribunal is required by s 423A of the Act  ‘to draw an inference unfavourable to the credibility of the evidence’ which was not before the delegate but finds that the strength of the inference is low, and in fact overcome, due to the peripheral nature of this evidence to the domestic violence claim and the finding as to the applicant’s overall credibility.  

14. The Tribunal is satisfied that the applicant does have a reasonable explanation why the claim for being a member of the LGBT community was not raised before the delegate’s decision was made, or even at the first hearing, because it accepts that, based on what the applicant said at the second hearing, the applicant considers her sexual orientation a shameful thing due to her Chinese culture; she has told only a few more than a dozen people in her whole life; she did not know how to talk about it for the purposes of the protection visa application and did not want to talk about it with the agent; and for the second hearing before the Tribunal she had built up her courage to speak about this.

15. The Tribunal finds that the applicant is a member of the LGBT community, that she refers to her herself as a lesbian but that she has sexual relationships with both men and women, based on what she said at the first and second hearings.

16. The Tribunal further finds that the applicant has not told her parents or her sister or surviving brother about her sexual orientation; that she believes that her sister knows her sexual orientation, but she is fearful of her family’s reaction if they knew; that she has experienced people looking at her with judgmental eyes when she has been in public in Taiwan with a girlfriend; that up until the age of 20 she had experienced the police coming to her places of residence because the family of her then girlfriend complained; that she was never arrested by the police or imprisoned on these occasions; that she did not have further interactions with the police, although she believes they were looking for her a couple of times, between the ages of 20 and [Age], when she travelled to Australia, based on what the applicant said at the second hearing.

17. The Tribunal finds that in Taiwan the applicant was discriminated against by being fired when the boss and colleagues at her [workplace 1] found out and is fearful that her sexual orientation would cause difficulty in job hunting if she returned; and that if she managed to find a job, when her boss and colleagues realised her sexual orientation, she is fearful she will not be accepted and she will be fired again, based on what she said at the second hearing.

18. The Tribunal also finds that she has been verbally abused by someone in Taiwan calling her gay to her face and pointing fingers at her; that one time when she was at work in a [workplace 1] and displayed intimate interactions with her girlfriend, a few people came over and swore at them; and that the applicant fears that there would be trouble living life there in general, again based on what she said at the second hearing.

19. The Tribunal accepts that the applicant would like to see her sister when she returns; does not know where her parents are currently living; has not contacted her father since she came to Australia; and is in touch with her mother once every several months, based on what was said during the first and second hearings. The Tribunal accepts that if the applicant confirms her sexual orientation to her sister, then there is a risk the sister may inform the parents.

100.   However, the Tribunal finds that there is no real risk of harm from the father, or the mother and father, whether or not they are made aware of her sexual orientation, in the reasonably foreseeable future if the applicant returns to Taiwan, because she does not know where they live; the father is about [Age] years old and his health is so-so; the applicant could live anywhere in Taipei, Taichung, or otherwise in Taiwan and not see or contact the father as she does now and the applicant could contact her mother once every few months in the same manner she does now from Australia. The Tribunal does not accept that the applicant’s heart would soften and she would go back to the family home, as she suggested might happen during the first hearing, or that she would succumb to any parental expectation that she would bring money back to them if she was in Taiwan, as she raised during the second hearing, in any way which would put herself in physical danger because at the age of [Age] the applicant is a responsible adult who does not know where her parents live and could continue to avoid seeing them, as she does now, and provide money, if she so chooses, without physically seeing them.

101.   The applicant mentioned that she feared her family knowing about her sexual orientation, but the Tribunal finds that there is no real risk of harm from her sister, because the applicant believes she already knows and wishes to see her upon her return to Taiwan, nor from her surviving brother, with whom she has no contact, which the Tribunal finds will continue into the reasonably foreseeable future, based on what the applicant said during the hearing.

102.   The Tribunal also accepts the country information above that the law criminalises domestic violence; authorities effectively enforce laws criminalising domestic violence; state protection is available to victims of domestic violence; operating within a low-crime environment, the Taiwanese National Police Administration (NPA) is effective and well-regarded and the judiciary in Taiwan is independent.

103.   The Tribunal also accepts that in Taiwan, the legal system does not criminalise same-sex sexual conduct between adults; Taiwanese law prohibits discrimination in employment and education based on sexual orientation; incidents of violence against LGBTI people are ‘rare’, and that the police response to incidents of violence against LGBTI people is ‘adequate’, based on the country information above.  Despite the applicant saying that the country information does not fit with her experience, the Tribunal finds that it does because the applicant has not suffered any physical violence even though she interacted with her girlfriends in public places and at work and has not been arrested for her same-sex relationships, even though she believed the family of a girlfriend when the applicant was 16 to 20 years old were causing the police to be called to her residences.

104.   The Tribunal rejects that the police may threaten her life, as the applicant stated at the second hearing, because it accepts the country information that the Taiwanese police are effective and well-regarded. The applicant did say that what she meant was that she feared being imprisoned, but the Tribunal rejects this because it accepts that same-sex sexual conduct between adults is not criminalised in Taiwan and same-sex marriages are permitted.

105.   The Tribunal accepts that the applicant may experience some societal discrimination in the reasonably foreseeable future if she returns to Taiwan, in the form of judgmental looks, being called out as gay to her face, having fingers pointed at her or discrimination at work, but the Tribunal finds that this does not rise to the level of serious harm.[16]

[16] Revised Explanatory Memorandum to Migration Legislation Amendment Bill (No 6) 2001 (Cth), at [25].

Conclusion

106.   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

1. 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).

108. The Tribunal finds that there are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Taiwan. This is because the Tribunal found that the applicant does not face a real chance of serious harm, and so the Tribunal also finds the applicant does not face a real risk of significant harm (as per MIAC v SZQRB (2013) 210 FCR 505).

109.   The Tribunal accepts the country information that Taiwanese law prohibits discrimination in employment and education based on sexual orientation, but it might occur for the applicant upon her return to Taiwan. The Tribunal finds that suffering judgmental looks in public, being called out as gay in public, having fingers pointed at you or being discriminated against does not rise to the level of significant harm.

110.   Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

FAMILY UNIT

1. 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 any of the criterion in s 36(2).

   DECISION

112.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Rebecca Lee
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.

…