1819034 (Refugee)

1819034 (Refugee) [2024] AATA 2117 (28 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1819034

COUNTRY OF REFERENCE: Taiwan
MEMBER:Khanh Hoang
DATE:28 May 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 May 2024 at 5:05pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – violent attack by money lenders – criminal gang – attack on home – physical assault – fear of killing – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Taiwan applied for the visa on 27 April 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 7 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was unrepresented in respect of the review.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee criterion or complementary protection criterion. 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.
Applicant’s identity and country of reference
Based on a copy of the applicant’s passport available on the Department’s file, I find that Taiwan is the applicant’s country of nationality and his receiving country for the purposes of refugee and complimentary protection assessments.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims and evidence before the Department
In his application for a protection visa, the applicant made the following claims:
·his family were forced to borrow money from an underground bank to fund his father’s medical fees;
·one day, the underground bank sent people to collect the money and they smashed all the goods in the house and forced the applicant’s parents to pay the money;
·he and his parents were beaten by these people, and after that they called the police who ignored their case;
·because the police ignored them, they wrote a public letter to distribute in hopes that it would get society’s attention but the ‘gangdom’, who colluded with the police, found out and sent police to catch them; and
·the applicant was scared so he fled to Australia; and
·if he returns to Taiwan, the underground bank and police will collude to put him in prison.
The delegate refused the grant of a protection visa. The delegate found that the applicant’s claims related to his family’s debt did not relate to any of the reasons in s 5J(1)(a). With respect to complementary protection, the delegate found that the applicant would receive protection from the Taiwanese police and judiciary against any threats he faces from moneylenders, gangs or corrupt police officers so as to reduce any risk he faces from this criminal entity to less than a real one. Therefore, there is taken not to be a real risk that the applicant will suffer significant harm under s 36(2B)(b) of the Act.
Tribunal hearing
Applicant’s background
The applicant is now [age] years old. He was born in Taichung. His biological mother passed away when he was born, and he grew up with the family of his biological father’s elder brother, whom he referred to as his ‘foster parents’. He has not seen his biological father for a long time, and he has not been in contact with his biological [siblings] either.
His foster father is an [occupation 1], and his foster mother is a housewife. He has not been in contact with them for a long time. He said that it has been four or five years since he last had contact with his foster family, being somewhere around the year 2020. He said when he last contacted them, they told him that they would contact him when everything is ‘good’, and to not try and contact them in the meantime.
The applicant arrived in Australia on working holiday visa in 2016 and he applied for protection on 27 April 2018. He said that he was assisted by a ‘company’ to lodge his application for protection and this company has since disappeared. He stated that he passed information to the company via [a named] messaging app, but he could not recall whether he made any calls through the app. The applicant stated that he did not have the opportunity to view the protection visa application before it was submitted.
Applicant’s claims for protection
When asked about his claims for protection, the applicant said that he told the company what happened in Taiwan. He said that his biological father owed debts due to gambling issues, and that a ‘underworld group’ and some political authorities became involved in the matter and his father lost the family home. He said even though he was in his foster parents’ care at the time, he received visits from underworld figures involved in the case.
He stated that there were some things that his foster parents did not want him to know about, and so they told him to go to Australia and apply for a visa. His foster parents told him that they would advise him the next two years if his biological father’s debt had been repaid, and that if he does not hear from them, he should apply for protection.
I asked the applicant about his knowledge of his father’s gambling debts. He said that he did not have direct knowledge, but he was advised by his relatives, including his aunties and foster parents, that his father had gambled away the family home. I asked the applicant when he first learned about his father’s gambling debts, and the applicant said in middle school. When asked if he could remember the year, the applicant was not sure, but he thinks it was when he was between [age range] years old.
The applicant said that he has not been in contact with his biological father for a long time. He said that he knew that the house and land were in his grandmother’s name and when she passed away it was given to his biological father. He was advised that someone took away the land and house, and although he is not sure, it was probably members of the underworld group or local officials. He said that when he went back to the house, he saw new owners of the place there. I asked the applicant when this was, and he stated that it was around 10 years ago.
I asked the applicant about the visits from the ‘underworld’ figures. The applicant stated that he did not know about the details, but there was a time when a group of people came to the door of his foster parent’s house. He could not recall exactly when this occurred. He said that he heard a lot of loud noises, and his foster parents told him to go to his room. He stated that it was not until he was older that he realised what they were saying at that time. He said the underworld figures were saying to ‘repay the debt’ and that they could not locate his biological father.
When asked what happened during the visit, the applicant said that his foster parents called the police who came and took the underworld members away. The applicant said that, as far as he knows, his brothers and other relatives were also harassed by the ‘underworld’ group. He was informed, when he was around 20 years old of this by his biological father’s [relatives]. He also claimed that his brothers were hit but he has not had any contact with them and does not know if they are still in Taiwan or overseas.
I asked the applicant whether he had suffered any harm from the ‘underworld’ group. The applicant said that he was confronted by the group at school. They found him at school, and they pushed and warned him about repaying the debt and told him to be careful. He said because there were teachers and others around who intervened the underworld group members left. I asked the applicant how the underworld group members knew who he was given that it was his biological father’s debt and that he was living with his foster parents at the time. The applicant said that the group has access to his information as there is a chance that parliamentary officers were also involved.
He said that he thought after the underworld members had been taken away by the police from his foster parents’ house, they would be detained for a couple of days. He then said a couple of days after the incident at his foster parents’ house, he saw one of them in the street. He did not let the person see him and he left in a hurry. He claims that they were released the second day after the incident because they had connections to parliamentary officers.
I asked the applicant how he knew the person he saw in the street was one of the ‘underworld’ members who were present at his foster parent’s house. The applicant said that was his speculation. I referred the applicant to his earlier evidence that he heard noises and was sent to his room, and I asked him how he saw the assailants if he was sent to his room. The applicant then stated that when he answered the door, things got physical and that is when his foster parents sent him to his room. I asked the applicant why he did not say earlier in his evidence that things had gotten physical. He then stated that that were no physical altercations, but that he heard loud noises and he intended to answer the door, but his foster parents came out and told him to go back to his room. I put to the applicant that his evidence appeared to be changing and that this might lead me to doubt whether he saw these assailants at all. The applicant stated that he remembers quite clearly that he saw them.
I asked the applicant why in his protection visa application he had stated that his family borrowed money to fund his father’s medical bills. The applicant said that he never gave the migration company this information. He only told them about the underworld group and local government officials, and he was told by the company that based on what he told them, he was eligible for a protection visa.
I asked the applicant what he thought would happen were he to return to Taiwan. He said that if his father’s debt has been paid that would be for the best, but he might still be harassed and he was not sure if his [brothers] are safe, and whether they are still being harassed. I asked the applicant if it was possible that his father had repaid the debts if the underworld group had taken his house and land. He said that it is not possible, because once he is a gambler and he will always be a gambler. The applicant said it does not make any sense why his father refuses to see his family if he has repaid his debt in full.
I asked the applicant why the ‘underworld’ group would be interested in him. The applicant stated that they were not interested in him, they are interested in money, and if they cannot get it from his biological father, their second option is the biological son. Otherwise, they would not have visited his foster parent’s house. I asked the applicant how he would know if his biological father’s debt has been paid or not given that he does not keep in touch with his father. The applicant said if his biological father has paid the debts, he would contact his relatives. He said that his foster parents would not contact him until everything finishes up. I referred the applicant to his earlier evidence that his foster parents and biological father do not keep in touch anymore, and I queried how they would know if his biological father’s debts have been repaid. The applicant said that he does not know what happened between his biological father and foster parents privately, but there were certain things they prefer him not know.
I asked the applicant how the ‘underworld’ group would find out if he has returned to Taiwan. The applicant said he cannot comment because he is not one of them. Asked why they would be interested in him now, the applicant stated that they would want to ask him for money, and that if they have located him in the past, he is afraid they will come back to him in the future.
I asked the applicant why, if the ‘underworld’ group were interested in him, did they not take further steps to harm him in while he was in Taiwan. He stated that it was because at that time, he did not report the matter to the police. He reiterated his fear of return because he has been unable to contact his brothers and he fears they have been harmed and he does not know if they are still alive.
I asked if the applicant had any other reasons to fear going back to Taiwan, and he stated that he did not have any.
FINDINGS AND REASONS
Refugee findings
In assessing the credibility of the applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims. However, I note that the Tribunal is not required to uncritically accept all, or any, of the applicant’s claims.[1] Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion made by an applicant has not been made out.[2]
[1] SZLVZ v MIAC [2008] FCA 1816 per Middleton J at [25].
[2] Randhawa v MILGEA (1994) 52 FCR 437 per Beaumont J at 451; Selvadurai v MIEA (1994) 34 ALD 347 per Heerey J at 348 and Kopalapillai v MIMA (1998) 86 FCR 547.
I observed the applicant to be a generally forthcoming witness when delivering his evidence at hearing. Notwithstanding, I have significant concerns about whether the applicant has made out the claim that there is a real chance that he will be harmed by an ‘underworld’ group seeking to recoup his biological father’s debts if he were to return to Taiwan.
I accept that the applicant gave information to a ‘company’ who lodged the protection visa application on his behalf. I accept that the applicant was not afforded the opportunity to view the protection visa application, and consequently, I have not placed any adverse weight on inconsistencies between the applicant’s oral testimony at hearing and his protection visa application. I am satisfied that the applicant was given the opportunity to fully present his claims for protection at hearing.
Findings of fact
I accept that:
·the applicant grew up with his ‘foster parents’ and that his foster father is his biological father’s [brother];
·the applicant has [siblings], but he does not know their whereabouts;
·the applicant found out in middle school — somewhere between [age range] — that his father had gambling debts and lost his house and land;
·the applicant does not keep in touch with his biological father;
·his foster parents and his biological father have not been in touch; and
·the applicant was last in touch with his foster parents around 2020.
Has the applicant suffered harm in the past?
On his own evidence, the applicant was made aware of his father’s debt when he was in middle school and somewhere between when he was [age range] years of age. He was not able to recall exactly when the ‘underworld’ group visited his foster parents’ house, but his evidence suggests that the event took place over a decade ago. I am willing to accept that ‘underworld’ figures visited his foster parents’ house during the time he was in middle school. I accept that he heard loud noises and was sent to his room. I accept that the applicant’s foster parents called the police and that the ‘underworld’ figures were taken away by police. I also note that the protection visa application referred to the applicant’s family writing a public note because police did not assist them. However, given that the applicant was not given an opportunity to read his protection visa application, I prefer and accept his evidence at hearing that his foster parents were, in fact, assisted by the police.
However, I do not accept the applicant’s shifting evidence provided later in the hearing that he answered the door and saw the assailants, and that subsequently, he saw one of them in the street. I do not accept that ‘underworld’ figures obtained the applicant’s residential address because they had connections to parliamentary figures, or that they confronted the applicant at school where they pushed him and warned him to repay the debt.

The applicant did not claim to have suffered any other harm from the ‘underworld’ group. Having considered the totality of his claimed experiences in Taiwan, I find that the applicant did not suffer any harm while he was in Taiwan from these ‘underworld’ figures.
Is there a real chance that the applicant will face persecution in the reasonably foreseeable future?
In determining whether a person has a well-founded fear of persecution, s 5J(1)(a) contains a subjective element that an applicant, in fact, holds a fear of being persecuted. Further, s 5J(1)(b) imposes an objective standard that there be a real chance the applicant will be persecuted if returned to his receiving country. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. However, a person can have a well-founded fear of persecution even if the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
I accept that the applicant has a subjective fear of harm from the ‘underworld’ group if he were to return Taiwan. I will now consider whether there is a real chance that this will occur.
The applicants’ claims rest on establishing that his father’s debts remain unpaid and that the ‘underworld’ group are motivated to recoup the debt from him and that they would harm him in the process. I do not accept either of these claims as I consider both to be highly speculative.
The applicant’s evidence is that he does not stay connected with his biological father, and he does not know whether his biological father’s debt has been paid off or not. He does not know how much money his father borrowed. The applicant can only speculate that because his foster parents have not been in touch with him to tell him everything is fine, that his father still has debts and that it is not safe to return to Taiwan. This is somewhat at odds with his evidence that his foster parents and biological father do not keep in touch, which would make it difficult for them know whether the biological father’s debt has been repaid.
The applicant further speculates that because he does not know the whereabouts of his biological brothers, that this suggests that they have been harmed, and that the same thing will happen to him. Other than the applicant’s assertion, based on hearsay evidence from his family when he was [age] years old, there is no information to suggest his brothers have been harmed at all, or for the reasons claimed. I do not accept that his brothers have been harmed by the ‘underworld’ group in the past, and I find it speculative that because the applicant has not been in contact with his brothers, that this suggests he is at risk of harm from the underworld group in the reasonably foreseeable future.
Further, the applicant was not able to provide an explanation as to how the ‘underworld’ group would find him if he were to return to Taiwan. I do not accept that they will have an intention to harm him now, given that they had ample time and opportunity to harm him in the past and did not do so. I do not accept that the underworld group did not take further steps to harm him because he had not reported them to the police. Given that the applicant did not leave for Australia until 2016 — at which time he would have been approximately [age] years old — he was able to remain in Taiwan for a substantial period without being harmed. When further considering the period that has lapsed since his departure from Taiwan, I do not accept that the ‘underworld’ group would be waiting for the applicant to return to Taiwan to harm him, including by recouping money from him, or otherwise colluding with police to put him in prison. I find this to be speculative and a far-fetched possibility.
Having carefully considered the applicant’s evidence in totality, I find it highly speculative and far-fetched that the ‘underworld’ group would seek to harm him were he to return to Taiwan. I do not accept that there is a real chance that the applicant will suffer any harm, let alone serious harm, were he to return to Taiwan in the reasonably foreseeable future.
The applicant has not advanced any further claims that he will suffer persecution for any of the reasons in s 5J(1)(a). I find that the applicant does not have a well-founded fear of persecution in Taiwan, and he is not a refugee under s5H(1). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection findings
I will now consider whether the applicant meets the criterion for complementary protection. That is, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[3] I have found above that the applicant does not face a real chance of harm from the ‘underworld’ group if he were to return to Taiwan. For the same reasons, there is not a real risk that the applicant will suffer significant harm if he were to return to Taiwan. The applicant did not advance any other claims that he will be at risk of significant harm were he to return to Taiwan.
[3] MIAC v SZQRB [2013] FCAFC 33
I am, therefore, not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Taiwan, there is a real risk the applicant will suffer significant harm.
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Khanh Hoang
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.
…

[2024] AATA 2117

28 May 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction