1819650 (Refugee)

1819650 (Refugee) [2024] AATA 3946 (12 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1819650
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Maralean McCalman
DATE:12 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 July 2024 at 11:36am
CATCHWORDS
REFUGEE – Protection Visa – Taiwan – fears harm from debt collector – loan shark – homosexual – sexuality – fears persecution from his family and other community members in Taiwan – applicant has travelled back to Taipei twice since the loan shark issue and been unharmed – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate for the Minister for Home Affairs, on 25 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 is citizen of Taiwan, applied for the visa on 22 March 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.
CLAIMS AND EVIDENCE
Background
In his protection visa application, the applicant provided the following information. He was born in Taiwan on [date]. He has never been married. He did not list any family members in his application, however, he states that he is in weekly contact with his family. He lists employment in Taiwan in where he worked as a [occupation]. Then, in Australia, from 2014 he worked [in] Queensland for nine months followed by [jobs] in various places around the country. He attended school in Taiwan from [year range].
Evidence before the Department
Claims for protection
The applicant’s claims for protection are contained in his protection visa application. His claims are as follows:
·He had a debt to bad people in Taiwan and the debt collector beat him and hit him with a gun.
·He does not believe that the authorities will protect him.
The applicant provided copies of his Taiwanese identity documents with his application.
The delegate’s decision
Records of the Department of Home Affairs (the Department) indicate that the applicant was not invited to attend a protection visa interview.
On 25 June 2018, the delegate made their decision. Based on the information before them, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
On 5 July 2018, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal). He provided the Tribunal with a copy of the delegate’s decision.
The applicant spent several years in Australia while on working holiday and student visas between March 2013 and October 2017. During this time the applicant left Australia for three weeks to a month on [date] October 2014, [date] December 2015 and [date] September 2017. He last arrived in Australia on [date] October 2017 on a student visa, which ceased on 1 June 2018. The applicant applied for a protection visa on 22 March 2018.
The hearing
The applicant appeared before the Tribunal on 12 June 2024 and by consent by video on 3 July 2024. An interpreter in the Mandarin and English languages was available to assist. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The oral evidence provided to the Tribunal in the hearing by the applicant was that he completed his protection visa application himself using Google Translate after getting general assistance about the process from a [work] colleague who was also seeking protection in Australia. He said that the contents of his application were all true and accurate.
The applicant also lodged a signed pre-hearing form on 1 February 2024. No new information was provided to the Tribunal in the pre-hearing form.
He told the Tribunal that he was a gay man. He said that he attended university in Taipei where he was forced to live on campus after being kicked out of home when he ‘came out’ to his parents. He was [age] years old at the time. He subsequently dropped out of university and then completed one-year mandatory military service from when he was [age] or [age]years old. He worked for about six months to one year in a [shop] and [business] in [City 1] City in southern Taiwan. The applicant was vague about specific dates, saying it was a long time ago.
The applicant claims that straight after his military service, he met his boyfriend, who worked in [an] industry. Three months after meeting his boyfriend, they decided to buy an apartment together for TWD 4 million in the [City 1] City area in southern Taiwan Having no home himself, the applicant said this idea attracted him, so he agreed that he would get a loan for TWD 500,000 to finance the deposit and his boyfriend would cover the balance with a separate loan from a bank. At this stage the couple were not living together.
He said that he was in love and trusted his boyfriend implicitly and when his boyfriend suggested that he borrow from a loan shark because he would not be eligible for a bank loan on his low income, he agreed. His boyfriend introduced the applicant to the lender and the written loan agreement was drawn up between the applicant and the lender. The applicant listed his place of employment in the agreement.
The loan repayments were TWD 10,000 per month, which the applicant honoured for seven months. He said that he passed his monthly instalments in cash to his boyfriend to make the payments to the lender on his behalf. The applicant said he was confident that his boyfriend made the payments.
The applicant said his boyfriend was in charge of all the dealings in regard to the purchase because he had experience with property matters. They bought the property with an agreement to allow the vendor to stay resident there for 12 months after the purchase. As far as the applicant is aware, his name was not on the title of the property. The applicant did not keep a copy of the loan agreement and said that he assumed his boyfriend held onto it. Soon after the applicant and his boyfriend lived together in the boyfriend’s rented apartment.
According to the applicant, approximately eight months after taking the loan, three men came into the [shop] where he worked and told him that his boyfriend had not made the last month’s payment against the applicant’s and his boyfriend’s loans. It was then that the applicant became aware that his boyfriend had also taken a loan from the same loan shark.
After the applicant told his boyfriend about the loan shark visit, his boyfriend told him that he had simply forgotten to make the payment. According to the applicant, his boyfriend mysteriously disappeared in the next few days. The three men returned to the applicant’s workplace a week after the first visit and when the applicant was unable to provide information about his boyfriend’s whereabouts, they assaulted him by striking him on his head with the butt of a gun. They insulted him for being homosexual and told him to pay up on both loans. They threatened that if he did not, they would ram the barrel of the gun up his backside.
The applicant, being fearful, and after getting medical treatment for his injuries at the hospital nearby, immediately quit his job and from then on stayed with a friend to avoid being found by the loan shark. This placed him 30 minutes away from his work and an hour by motorbike from his last residence with his boyfriend. He searched for his boyfriend, including keeping watch outside his workplace, without success. He did not make any inquiries of his boyfriend’s employer. Nor did he report either the loan shark incident or that his boyfriend was missing, to the police. When asked if he was concerned for his boyfriend’s safety and whether this warranted police involvement, he said that he did not want to entertain dreadful thoughts and prefers to believe that his boyfriend disappeared out of fear, and he hoped he was safe and happy somewhere. When asked, he said that he believed their relationship was sound at the time, however he thought it best to get on with his own life. The applicant did not suggest that he did not seek police assistance because he lacked confidence in the police, as he had asserted in his protection visa application.
In terms of the loan shark, he said that he warned his mother not to answer the door to any strangers if they came, or to give information out about him to anyone. He said that he did not disclose details or reasons for his request to his mother.
The applicant says that after a week of being harassed by the loan sharks via phone calls and texts, he changed his phone number and prepared to depart Taiwan. He came to Australia on a working holiday visa in March 2013, which he said was about six months after the loan shark assault. He told the Tribunal that he did not hear from the loan shark again after he changed his phone number and left the area where the assault occurred. He said that his mother, with whom he is in regular contact, has not indicated that she has been approached by anyone looking for the applicant. He has never heard from his boyfriend again nor tried to trace him, having accepted that he had been abandoned by his boyfriend.
He claims that he still fears that the loan shark would harm him if he returned to Taiwan, if they found him.
New claims
The applicant lodged a new claim for protection in Australia on the basis of being gay. He told the Tribunal that when living in Taiwan, he had struggled to be himself because people around him could not accept that he was gay. He gave examples of: being tormented by fellow students in school; his father throwing him out of home when he [age]; his mother and grandmother persistently enquiring when he would marry or if he had a girlfriend; subtle discrimination in the form of being allocated more work than other employees and snide remarks being made. He also said that as a high school student, a group of men physically assaulted him. He told the Tribunal that while these incidents occurred a long time ago, being gay in Taiwan is still difficult because homosexuality is not readily accepted in the country.
The Tribunal asked the applicant why he had not made this claim in his original protection visa application or in his pre-hearing form, noting that the applicant had said, earlier in the hearing, that the information in these documents was all true and correct. The applicant responded that the issue about his sexuality is not life-threatening, however, the loan shark issue is the primary concern in regard to future harm if he returned to live in Taiwan. He said that he was adding this new claim, which is genuine and true, to give him the best possible chance of a favourable outcome from the Tribunal. He said that he wants it to be a ‘bonus point’ in his overall application. The Tribunal accepts the applicant’s explanation for the late addition of the new claim.
As noted earlier, the applicant travelled in and out of Australia between 2013 and 2017 and the applicant told the Tribunal that on at least two occasions he visited Taiwan. He told the Tribunal that he visited his mother and friends but consciously avoided the area where he was assaulted by the loan shark in 2012. There were no incidents involving the loan shark during his visits back to Taiwan. Nor did the applicant give any evidence to suggest that he suffered harm because of his homosexuality during these visits.
Summary of the applicant’s claims
The applicant fears harm from the loan shark because he thinks that they would pursue the debt that he believes is still outstanding.
He fears persecution from his family and other community members in Taiwan because he is a gay man.
Does the applicant meet the refugee criterion?
The loan shark
While no documentary evidence was offered by the applicant in support of his claims, the Tribunal accepts that the loan shark attended the applicant’s workplace on two occasions and assaulted and threatened him around September 2012 (the applicant was not totally sure of dates but was adamant that the assault occurred no more than six months before he left for Australia, which was March 2013). The Tribunal also accepts that the applicant was able to implement effective self-protection strategies to maintain his safety for approximately six months after the assault before he left Taiwan. When asked if the loan shark had since attempted to get information about his whereabouts from the [shop] where the assault occurred, he said he had no idea about this. When asked, he told the Tribunal that his family had not been approached either. The applicant also told the Tribunal that he has not made any further payments against his debt since he came to Australia and does not believe that he should be held responsible for his past boyfriend’s debt. The applicant told the Tribunal that he does not hold any claim to the property he helped finance and has no knowledge of what has happened to the property since he left Taiwan.
The Tribunal put to the applicant that as more than a decade has passed since there has been any contact from the loan shark and also no indication that the loan shark attempted to find him through any of the likely sources, this suggests that the loan shark is no longer interested in the applicant. He responded that it was a substantial debt and that in Taiwanese culture, these things are followed up and that his life would be at risk if ever he was discovered by the loan shark again.
The applicant did not present any further evidence to suggest that the loan shark was still pursuing him to recover the debt or that the debt still existed or that the loan shark maintained any interest in him. The Tribunal accepts that the last contact the applicant had with the loan shark was around September 2012.
When put to the applicant that that he was able to safely visit Taipei twice since he left in 2013, he responded that he was safe in Taipei because he avoided [City 1] City. The Tribunal put to him that this suggests that his fears of the loan shark appear to only relate to a specific area of Taiwan, and that, because he has found haven in other parts of the country, he may not require, or be eligible for protection, in another country such as Australia. The applicant responded that he cannot be expected to cut all ties with his family, who live in Taipei, and never see them again. When asked where he would live if he was to return to Taiwan, he indicated that he would live in Taipei but would choose central Taipei and exclude the south in the [City 1] City area because it was too dangerous.
The applicant’s evidence stated above does not suggest that he holds a fear of returning to Taiwan now or in the foreseeable future, nor does it suggest that the loan shark continues to be genuinely interested in recovering the debt or seeking retribution for the applicant’s failure to repay the money he believes is still owed. The Tribunal notes that the applicant has travelled back to Taipei twice since the loan shark issue and been unharmed, and that there is no indication that the loan shark has tried to find him in 10 years. On this basis, the Tribunal considers it reasonable to assume that the loan shark is no longer interested in harming the applicant in order to recover the debt or as a retribution for his failure to repay the debt the applicant thinks is still an issue of concern.
In reaching this view, the Tribunal has placed weight on several factors: firstly, the applicant’s delay of six months before initially leaving Taiwan; secondly that he has been able to safely visit Taipei since the assault and while a significant debt remains; and thirdly, that the applicant delayed five years before applying for a protection visa once he was in Australia.
The Tribunal is of the view that the applicant does not have a genuine fear of being harmed by his creditor, the loan shark, should he return to Taiwan now or in the reasonably foreseeable future. On the basis of the evidence before the Tribunal, the Tribunal does not accept that that there is a real chance that the applicant will be seriously harmed by those he borrowed money from prior to his departure from Taiwan in March 2013.
Being gay

The applicant’s claim about his sexuality amounted to his belief that homosexuality was not well accepted in Taiwan, and his personal struggle because his family, particularly, could not accept that he was gay. Referring to the country information, the Tribunal put to the applicant that Taiwan is considered to be a liberated country[1] with numerous gay politicians, gay pride marches, legally sanctioned same-sex marriage and that Taiwan is sometimes referred to as ‘the San Francisco of the East’.[2] The applicant’s response was that while there is more acceptance of same-sex relationships now than when he lived there prior to 2013, gay people are still unable to adopt children unless it involves children of family members. The applicant did not raise any claims to the Tribunal on the basis of being denied the opportunity to adopt children or that he is exploring adoption in Australia and would be denied this if he returned to Taiwan. He did not raise any other issues and did not outline any fears of harm he might face from his family or from anyone else because he is a gay man.
[1] Contemporary Taiwanese Society LGBT Rights and the Road to Marriage Equality, University of Social Sciences and Humanities, Vietnam National University HCMC, [email protected].
[2] National Library of Medicine, National Centre for Biotechnology Information, International Journal of Environmental Research and Public Health, March 2021; 18(5): 2018, published online 5 March 2021, accessed on 8 July 2024.
The Tribunal is prepared to accept that the applicant experienced difficulties, possibly discrimination and even assault in the past when he was young. The Tribunal also accepts the verbal reference to his homosexuality by the loan shark in 2013 during the assault, the subject of his primary claim for protection. The applicant’s main issues appear to centre on the expectations and persistent enquiries relating to his sexuality from his mother and grandmother and that such expectations and enquiries may continue in the future.
The Tribunal puts weight on the fact that the applicant did not raise any claims based on his sexuality in his protection visa application and, by his own omission, did so in the hearing to advance his claim for protection. The Tribunal also takes into account that the applicant has travelled back to Taipei on several occasions to visit his family and has not indicated that he feared any harm or experienced any harm when he visited Taipei because of his sexuality.
In any event, the Tribunal is required to evaluate the type and intensity of harm and, to rise to the level of persecution, such harm must be oppressive, and intolerable.[3] There is no evidence to suggest that the applicant holds fears of serious harm as outlined in s 5J(5) of the Act and, thus, the Tribunal finds that the level of harm expressed by the applicant in regard to his sexuality does not rise to the required level.
[3] Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55, at [65].
On the basis that the applicant has not put any evidence to the Tribunal to suggest that he holds a well-founded fear of persecution because he is gay, the Tribunal does not accept that there is a real chance that the applicant would face harm if he returned to Taiwan now or in the reasonably foreseeable future.
Police protection
The applicant did not outline any issues of concern or pursue claims relating to police protection. When asked about why he did not make police reports about either the loan shark assault and threats or about his missing boyfriend, the applicant said that he did not need the police. In the first instance he said that he was able to implement his own effective protection strategies, which included avoiding unsafe areas of Taipei and leaving the country to work in Australia. In regard to the second matter of his missing boyfriend, he said that he preferred to believe that his boyfriend was not in danger and had looked after himself.
The Tribunal accepts that the applicant chose not to call on the police for the reasons stated above. In addition, the Tribunal notes the following country information about the Taiwan police force:
·A report by the US Department of State indicates that Taiwan has an effective police force and that violent crime rates are among the lowest in the world, and crime is generally low.[4] A 2021 independent survey measuring public satisfaction with justice and crime prevention policies in Taiwan shows that for the third consecutive year, more than 80% of the respondents were satisfied with the police in maintaining public safety.[5] In addition, there are strictly enforced anti-corruption regulations in Taiwan that target both public officials and civil servants.[6]
·The Taipei Police Department has a dedicated Economic Crime Section that investigates loan sharks, among other economic crimes.[7] Taiwanese police have been actively cracking down on loan shark activities. This includes making increased efforts to combat illegal money lenders who were encouraging people to take out loans.
[4] ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 7 July 2023, 20230727101600.
[5] Department of Home Affairs, (DOHA) Common Claims. Republic of China (Taiwan) Country of Origin Information Services Section (COISS) 5 July 2022. p10. ‘Public Satisfaction with the Police is over 80% in 3 Consecutive Years Citizens Support Drug Enforcement, Fraud Prevention and Various Measures by the Police’, Ministry of Interior (Taiwan), 25 February 2022, 20220601101451.
[6] 'BTI 2018 Country Report - Taiwan', Bertelsmann Stiftung, 23 March 2018, CIS7B83941566, p 27.
[7] >
On the basis that the applicant has not put any evidence to the Tribunal to suggest that he holds a well-founded fear of persecution because of lack of police protection, the Tribunal does not accept that there is a real chance that the applicant would face harm if he returned to Taiwan now or in the reasonably foreseeable future.
Summary of findings under refugee criterion
In making its findings, the Tribunal must take into account that, for a person's fear of persecution to be well-founded, there must be a real chance of serious harm. Consistent with the interpretation of well-founded fear under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the Convention), this real chance requirement contained in s 5J(1)(b) provides an objective element to that concept. Not only must a person fear persecution, but there must also be a prospect of that fear being realised. The concept of ‘real chance’ as relevant to the assessment of well-founded fear under Article 1A (2) of the Convention was explained in the High Court in Chan v MIEA as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50% chance.[8] It is clear from the Explanatory Memorandum to the Bill introducing s 5J to Parliament that the same threshold should be used to assess claims under s 5J.[9]
[8] (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9.
[9] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014, p 171 at [1180].
The Tribunal has considered all the applicant’s claims, individually and cumulatively. The Tribunal finds that there is not a real chance the applicant would suffer serious harm from anyone in Taiwan for the reasons of his race, religion, nationality, membership of a particular social group or political opinion. The Tribunal finds the applicant does not have a well-founded fear of persecution for any reason.
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
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
For the same reasons outlined above and noting that the Tribunal has found that there is not a real chance that the applicant will face any harm on his return to Taiwan and that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of well-founded fear,[10] the Tribunal also finds that the applicant faces no real risk of significant harm.
[10] MIAC v SZQRB [2013] FCAFC 33.
Having regard to all its findings of fact above and the totality of the applicant’s circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Taiwan, the applicant will face significant harm if he was returned to Taiwan now or in the reasonably foreseeable future. He therefore does not meet the criteria for complementary protection.
Overall finding
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under either s 36(2)(a) or s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Maralean McCalman
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 3946

12 July 2024

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Immigration

Administrative Law

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Procedural Fairness

Statutory Construction

Natural Justice

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