1825521 (Refugee)

1825521 (Refugee) [2024] AATA 2493 (14 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1825521

COUNTRY OF REFERENCE: Taiwan
MEMBER:Jane Marquard
DATE:14 May 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 May 2024 at 3:26pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – violent attack by money lenders – criminal gang – attack on home – physical assault – state protection – return visits to Taiwan – decision under review affirmed
LEGISLATION
The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
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

The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 17 August 2018 to refuse to grant her a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is a citizen of the People’s Republic of China (Taiwan).
She arrived in Australia on a Working Holiday (Subclass 417) visa [in] April 2016. She was granted an extension on 17 September 2016. She departed Australia [in] July 2017.
She arrived back in Australia [in] August 2017. She departed again [in] February 2018 and then arrived back [in] March 2018. Her Working Holiday (Subclass 417) extension visa ceased [in] April 2018.
The applicant applied for the protection visa on 23 March 2018.
A delegate of the Department of Home Affairs (the Department) refused to grant the visa on 17 August 2018. The delegate was not satisfied that the applicant would be persecuted for one of the reasons set out in the legislation if she were to return to Taiwan. The delegate was also satisfied that the applicant would receive protection from the state such that there would not be a real risk of significant harm.
RELEVANT LAW
The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.
[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[4]
[2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).
[3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[4] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must establish that they:
a.are a refugee (the refugee criterion);[5] or
b.qualify for complementary protection (the complementary protection criterion);[6] or
c.are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[7]
[5] Section 36(2)(a) of the Act.
[6] Section 36(2)(aa) of the Act.
[7] Sections 36(2)(b) and (c), the Act.
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).
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–5LA of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
EVIDENCE CONSIDERED IN THE REVIEW
The Tribunal has taken into consideration the information provided by the applicant in the application to the Department and the applicant’s migration records.
On 4 September 2018 the Tribunal invited the applicant to provide arguments and material in support of her application for review. No arguments or material were provided.
On 31 January 2024 the Tribunal asked the applicant to complete a pre-hearing information form. In the form there were questions about her claims for protection and an invitation to provide evidence in support. The applicant did not complete the form.
On 8 April 2024 the applicant was invited to appear before the Tribunal at a hearing to give evidence and present arguments in relation to the issues arising in the review. The applicant responded to the invitation as follows, ‘I received the invitation email and mobile message about the hearing, but I do not want to attend. Please decide my case and send me the result’. In the hearing invitation letter, she was invited to provide documents and arguments in support of her application. No additional information or evidence was provided.
The Tribunal has decided the matter on the papers before it as requested by the applicant.
FINDINGS AND REASONS
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has a passport issued in 2015. The Tribunal is satisfied that the applicant is a national of Taiwan and that Taiwan is the receiving country for the purposes of the legislation.
Personal particulars
The applicant stated in her application that she was born in [specified year] in Kaohsiung, Taiwan.
The Tribunal accepts the information provided by the applicant that her parents live in Taiwan, and she finished high school in [specified year] and was employed as a ‘worker’ from [year] until 2018.
Claims made by the applicant
The applicant claimed in her application that:
I suffered persecution by Taiwan government because I unable to repay money to the underground bank. My father’s body conditions was not good all the time and he needs to take medicine every day. The doctor told me that my father needs to have an operation to keep his health but our family has no money to pay the medical fee so we have to borrow money from the underground bank, Although the interest was high we have no choice. One day the underground bank sent people came to my home to collect money. They smashed all goods of home and threaten us. Even worse, I and my parents were beaten by them because unable to repay money. After that we called the police, but the police ignore our case. My friend told me that the gangdom was the protective umbrella of underground bank, they also colluded with the police. So we wrote public letter to distribute, to hope that that get society’s attention and help. However, after the gangdom knew our behaviour, they sent people to catch me. I was so scared, escape Taiwan and fled to Australia.
She said in her application that she had not experienced harm in Taiwan. She said that the ‘underground bank and gangdom are colluded with the police’. She said that they ‘protect each other and the Taiwan government is corrupt.’
Findings of the Tribunal about the incidents in Taiwan
The Tribunal does not accept on the evidence provided that the applicant and her family borrowed money from an underground bank as they needed money to pay medical bills for her father. The Tribunal also does not accept that the underground bank sent people to her home to collect the money, or that they beat her and her parents, smashed goods and threatened her family. The Tribunal does not accept that she wrote a public letter after police ignored their case. The Tribunal does not accept that a gang associated with the bank sent people to ‘catch’ the applicant. The Tribunal does not accept that there was collusion between the bank, gang and the police. The Tribunal does not accept that the applicant fled Taiwan for Australia to flee the underground bank or the gang members or the police. Reasons for these findings are set out below.
The Tribunal acknowledges that asylum cases present particular complexities in regard to fact-finding. Applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Notwithstanding difficulties that applicants may face, which are recognised by the Tribunal, an applicant must present sufficient evidence to support the claims made. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510. Although it is the applicant’s responsibility to provide sufficient evidence to establish the claim, the Tribunal did invite the applicant on a number of occasions to provide written evidence (details of these invitations are set out earlier in this decision), as well as inviting the applicant to a hearing to present arguments and evidence in relation to issues arising in the matter. These invitations were declined.
On the brief and uncorroborated information provided, the Tribunal is not satisfied that the applicant and her family borrowed money from an underground bank to pay medical bills. The applicant has not provided any documents or evidence to support her claim, such as medical reports or loan or bank documents despite being invited to provide documents and evidence in support of her claims on a number of occasions, referred to earlier in this decision. She has not provided any explanation as to why they did not borrow from a conventional bank.
The Tribunal is not satisfied that the underground bank sent people or gangs to collect the money and that they beat her and her parents, smashed goods and threatened her family, or that the applicant fled the country for this reason. The Tribunal is also not satisfied that the police were called and refused to attend, that the applicant wrote a public letter, or that the police colluded with the bank. No documents or material were provided to support these claims despite invitations on a number of occasions to provide evidence to support her claims. As the applicant declined the invitation to attend the hearing, the Tribunal was unable to elicit further evidence about her claims. The Tribunal was unable to question her about the details of the loan agreement, how much was paid back or owed, when the incidents of harm are claimed to have taken place, why the bank sent people to claim the money, what took place at the home, which gang was involved and why she believes there is collusion from police, what police station they went to and the details of what took place, the circumstances of the public letter, who the letter was sent to and whether any harm was caused to her parents after she left. The Tribunal was also unable to question the applicant on the basis and circumstances of her departure to Australia in the context of a number of arrivals and departures and her working holiday visas. The Tribunal is not required to accept uncritically claims made by an applicant.[8] On the bare and unsupported assertions provided, the Tribunal is unable to be satisfied that these incidents took place.
[8] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[1994] FCA 1253; MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155.
Does the applicant meet the refugee criterion?
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.[9]
[9] Section 5H(1) of the Act.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·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 above; and
·the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear being persecuted for one of the stated reasons?
Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Convention.
The Tribunal is not satisfied that the applicant fears being persecuted for one of the stated reasons as the only evidence about this is the assertion in her written application. She declined the invitation to appear at hearing to discuss her fears and did not provide further documents or material despite invitations to do so.
Is there a real chance of serious harm if the applicant were to return to their home country?
The applicant claimed in her application that if she returned to Taiwan she would be caught by the police, who are in collusion with the gang and underground bank. She claimed that if she went to prison she would be persecuted and might die. She claimed that she would suffer mental and physical persecution.
For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept[10] – not only must a person fear persecution, there must also be a prospect of that fear being realised.
[10] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J of the Act, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[11]
[11] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171
The Tribunal is not satisfied, for reasons set out earlier, that the applicant and her family borrowed money in Taiwan from an underground bank, that the applicant wrote a public letter, the police ignored her case, or that the bank sent people or gangs to smash goods and beat her family. The Tribunal is also not satisfied for reasons set out earlier that the applicant left the country for reasons of fear of representatives of the bank or gangs or police colluding with the bank.
As the Tribunal does not accept that the applicant was harmed by representatives of the bank or gangs, or that police colluded with the bank or the gangs, or that gangs were chasing her in Taiwan, the Tribunal is also not satisfied that there is a real chance of serious harm if the applicant were to return to Taiwan in the reasonably foreseeable future. As the applicant declined the opportunities to provide materials and submissions in support of her claims and to attend a hearing to provide arguments in relation to the issues arising, the Tribunal does not have before it information about why representatives of the bank or gangs or police would be motivated to harm the applicant if she returned to Taiwan, particularly as many years have passed since she arrived in Australia. The Tribunal also does not have sufficient evidence before it to find that the police would arrest her or that she would be harmed in prison. The Tribunal does not have evidence before it that her parents have suffered any harm since she left the country. The Tribunal is not satisfied for all these reasons that there is a substantial and non-remote chance of serious harm if the applicant were to return to Taiwan in the reasonably foreseeable future.

In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation’. In this case, the Tribunal is of the view that the fear of persecution is mere speculation rather than having a substantial basis. The Tribunal is not satisfied on the evidence provided that the police would arrest the applicant or that she would be harmed or killed in prison, or that she would suffer mental or physical harm from gangs, police or the bank.
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
Does the applicant meet the complementary protection criterion?
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
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’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that the applicant was harmed in Taiwan by representatives of a bank or gang or that the bank was colluding with police. Reasons for this are set out earlier in this decision.
The Tribunal is not satisfied that there is a real chance of serious harm if the applicant were to return to Taiwan for reasons set out earlier in the decision. For the same reasons, on the basis of the decision in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation if the applicant were to be removed from Australia to Taiwan.
The Tribunal is not satisfied therefore that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

ATTACHMENT A – 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 2493

14 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

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