1827224 (Refugee)

1827224 (Refugee) [2024] AATA 2132 (17 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1827224

COUNTRY OF REFERENCE: Taiwan
MEMBER:Catherine Wall
DATE:17 May 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 May 2024 at 8:52am
CATCHWORDS
REFUGEE – protection visa – Taiwan – violent attack by money lenders – criminal gang – attack on business – physical assault – fear of killing – state protection – return visit to Taiwan – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Guo v MIEA (1996) 64 FCR 151
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
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 31 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age] year old citizen of Taiwan. He last arrived in Australia [in] November 2017 on a Working Holiday visa and applied for protection on 9 July 2018.
The delegate refused to grant the visa on the basis that the applicant was not owed protection by Australia. The applicant was not invited to an interview with the department. The applicant applied for review of that decision on 17 September 2018.
The applicant appeared before the Tribunal 8 May 2024 to give evidence and present arguments. He was not represented in relation to the review and the hearing was conducted with the assistance of an interpreter in the English and Mandarin languages.
CLAIMS AND EVIDENCE
A summary of the applicant’s claims as detailed in his protection visa application are as follows:
He offended gangsters in Taiwan and they threatened to cut him into pieces. They came to his workplace and beat him and destroyed things in the shop.
They will hurt him if he returns to Taiwan.
The applicant did not submit any additional information to the Tribunal prior to the hearing.
Evidence at hearing
The applicant was asked about his life in Taiwan. He said that he was born in Tainan City and lived there until he came to Australia. His parents and [specified family members] remain in Taiwan. He left school when he was [age] years old and worked as [an occupation 1] between [specified ages]. He then worked for six months in [a business 1].
The applicant said that he travelled to Australia in 2016 because he was in trouble with a lender and he needed to earn money to repay the debt. He said that his friend, [Friend A], borrowed [amount] New Taiwan Dollars (NTD)[1] and asked the applicant to guarantee the loan. After about 4-5 months the lender came to his workplace to advise him that his friend had disappeared and that the applicant was now responsible for the debt which had accrued interest and was now [larger amount] NTD.
[1] Equivalent to approximately $[amount] AUD at current conversion rates.
I asked the applicant why his friend borrowed the money. He said that he did not know but thought that he used it for ‘doing business’ although he did not own a business. The lender brought the loan document to the applicant’s work and he was busy and did not want the customers disturbed so he signed it without reading it. He did not check the terms of the loan. He had never seen the lender before and does not know his name.
When asked if he had maintained contact with his friend and knew his whereabouts, the applicant said that they did not keep in touch. He said he was a friend from school and had known him a long time but they just didn’t have that much contact.
The applicant’s evidence was that he told the lender he was unwilling to repay the loan because it was not his debt and they should go after the borrower. As a result the lender and his people came to his workplace and slapped him twice and slashed some products in the shop. His boss was there at the time but did nothing. Some time later the applicant was stopped on his way home by 4 or 5 men. Two of them lifted him up and another threatened him with a knife but did not hurt him. The applicant wanted to negotiate but they refused. He said that he reported this incident to the police the next day and they took a statement but nothing happened. He followed up with the police one month later and they said that there was no progress on the matter. When asked which police station handled the report, he said it was the [named] Division police station in Tainan City. He did not provide evidence of a police report.
The applicant said that he was trying his best to repay the debt at the time he talked with a client who had returned from a working holiday in Australia. The client said it was easy to make money in Australia so the applicant decided to apply for a working holiday visa so he could make money to repay the debt. He said that he had not made any payments to the lender at this stage. He arrived in Australia [in] September 2016 and worked in an [business 1] in [Town 1]. He had no contact with the lender during this period and the lender did not contact his family during this period. He returned to Taiwan to visit his parents [in] October 2017. He contacted the lender to advise that he had saved [larger amount] NTD to pay off the debt however the lender told him that the debt had increased to [an even larger amount] NTD[2]. The applicant said that he gave the lender [amount] and told him that he was unable to pay any more. When asked how they responded to this, the applicant said that ‘they let him go’. He decided to return to Australia to work to make more money to repay the debt.
[2] Equivalent to approximately $[amount] AUD at current conversion rates.
The applicant returned to Australia [in] November 2018 and applied for protection on 9 July 2018. He said that he was telling a colleague about his problems and they told him that he could apply for protection. I asked why he did not apply for protection when he first arrived in Australia and he said that his intention at that stage was to earn money to repay the debt.
The applicant’s evidence is that he has not heard from the lender since his return to Australia in November 2018. He said that his phone was broken and he lost all his contacts. His family has not been contacted by the lender as he gave an alternative address on the loan guarantee form so the lender does not know where his parents live. He said that he currently works at a [company] in [Town 2] and lives in a nearby suburb with his girlfriend and his landlord’s family members.
I asked the applicant why he is unwilling to return to Taiwan. He said that the lender might find him and the debt will be so large that he will be unable to repay it, so they might threaten his life. I asked if he felt that the police can provide him with protection. He said that they could, but they cannot provide 24 hour protection. When he previously reported the threats he felt that they regarded it in a dismissive manner and they won’t take action until he is actually hurt. I also asked the applicant if he had considered relocating to an area away from the lender. He said that he had previously investigated this option but the lender is part of a large organisation with branches across the country. I asked how he knew this, given that he had said that he did not know the lender’s identity. He said that he asked his friends who are members of gangs and they told him this.
I advised the applicant that I had some concerns with aspects of his evidence and I would raise these with him and give him the opportunity to respond.
Firstly, I questioned why he would agree to guarantee a loan when he seldom had contact with the borrower, he was unaware of the borrower’s circumstances or their reason for taking out the loan and he did not know the terms of the loan. His response was that he had known this person since school but was not close to him.
Secondly, I said that I might find it difficult to accept that the lender simply ‘let him go’ without threats or harm when he had disappeared for over 12 months and would only repay [amount] NTD on a debt of [the even larger amount] NTD, even though he had advised he could pay [larger amount] NTD. In response the applicant said that, as long as they got some money, they would not pursue him, but they still expected him to pay off the debt.
Thirdly, I referred to country information which indicates that the Organized Crime Prevention Act 2018 includes a broad suite of offences including threatening a person in the name of an organised crime group.[3] It is reported that in 2021 police arrested 161 suspected gang members and 259 criminal figures were arrested in 2020[4]. I suggested to the applicant that this degree of response to organised crime and loan sharks suggests that the authorities are willing and able to provide him with protection. I also referred to reports that the law prohibits lending money at an ‘obviously’ inappropriate interest rate[5] and that loan sharks have been targeted in broad crackdowns against criminals.[6] In response the applicant said that this information comes from the Taiwanese authorities who tell you what they want you to see rather than what is reality. The applicant further stated that, while hundreds of gangsters might have been arrested, there are many thousands operating in the country.
[3] Organized Crime Prevention Act’, Government of Taiwan, 3 January 2018, arts 2, 3, 4, 6, 20200610132331
[4] Law and Order: Taipei police commissioner reassures public on safety’, Taipei Times, 7 May 2021, 20210519090638.
[5] 108 'Criminal Code of the Republic of China', Government of Taiwan, as amended to 15 January 2020, art. 344, 20200610144237.
[6] 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019, 20200610130957.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ASSESSMENT
Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, 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.[7]
Identity
[7] (1999) 197 CLR 510.
The applicant’s nationality is not an issue. He travelled to Australia on a valid Republic of China (Taiwan) passport and has consistently stated in documentation that he is a national of Taiwan. The delegate did not indicate any concerns about the applicant’s identity or nationality. Therefore, I am satisfied the applicant is a national of Taiwan and I have assessed his claims against Taiwan as his receiving country.
Credibility of claims
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[8] It is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[9]
[8] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
[9] (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
The information in the visa application was extremely brief. The applicant said that he ‘offended’ a gangster, however he did not mention any debt to a loan shark. He said that they threatened to cut him into pieces but did not say why or when these threats were made. This contrasts with his evidence at hearing that his fear of harm related to a friend’s debt to a loan shark and his need to assume responsibility for the loan once his friend disappeared. At hearing he made no reference to any threats from gangsters to ‘cut him into pieces’. While I accept that the applicant referred in general terms to harm from gangsters in the visa application and at hearing, I find that the claim of ‘offending a gangster’ is quite different from the claim of fear arising from having a considerable debt with a loan shark. The debt claims were made for the first time at hearing and I find that this casts doubt on the credibility of the applicant’s claim that he fears harm from a loan shark.[10]
[10] Subsection 423A of the Migration Act 1958 (Cth).
As discussed with the applicant at hearing, I find it implausible that he agreed to sign a guarantee for a loan with very little knowledge of the content of the loan or of his friend’s circumstances or of his obligations as a guarantor. I find that his explanation, that he had known the borrower since school but was not close to him and did not have much contact with him, lacked credibility. He also said that he had no contact with his friend after he signed the papers and was not aware that he had ‘disappeared’ until informed of this by the lender. I find this account of events unconvincing.
The applicant claims that he was threatened by 4-5 men with a knife in June 2016 for non-payment and that he reported this to the police. He left Taiwan [in] September 2016 without having made any repayments and yet he was not threatened or harmed during that 3 month period. I consider this to be inconsistent with the applicant’s claim that he feared serious harm from the loan shark. I also find his stated fear of serious harm to be inconsistent with his evidence that, upon return from Australia in October 2017, he offered to pay [larger amount] NTD but reduced this to [amount] NTD when they told him the total debt was [the even larger amount] NTD. When invited to comment on this, the applicant said that ‘they would not go after him as long as he paid something’. I am not persuaded that the loan shark would be satisfied with a payment of [amount] NTD given that the applicant had ‘disappeared’ for over 12 months and had not repaid anything during that period.
The applicant’s evidence is that his family members in Taiwan have not been contacted by the loan shark in his absence because he did not provide his mother’s address on the loan papers. However he also claimed that the lender is part of a large organisation with branches across the country and this means that they would find him anywhere if he tried to relocate. If this is the case, I consider that such a large, networked organisation would not have difficulty locating his family members and questioning them about the applicant’s whereabouts. I also consider that such a powerful ‘network’ would have been able to locate the applicant’s friend who disappeared without repaying his loan. I find that the applicant’s claim that he fears serious harm from a dangerous and powerful organisation are inconsistent with his evidence that they were happy to accept ‘something’ despite the size of the debt, they did not question his family about his disappearance and they never followed through with their threats of harm.
I acknowledge that loan sharks charge unreasonably high interest rates, however I do not accept the applicant’s evidence that the debt increased from [amount] NTD to [larger amount] NTD over the first 4 months and totalled [the even larger amount] NTD after 18 months.
Does the applicant meet the refugee criteria?
I accept that the applicant is from Tainan, Taiwan, and his parents and [sibling] live in Taiwan. I accept that he left school at [age] years and worked as [an occupation 1] then worked [at a business 1]. I accept that he came to Australia on a Working Holiday (Class TZ) (subclass 417) visa [in] September 2016 and returned to Taiwan [in] October 2017. He last arrived in Australia [in] November 2017 as the holder of a (Class TZ) (subclass 417) Working Holiday visa.

In regard to the applicant’s claims for protection, I did not find the applicant’s evidence to be reliable or credible. I do not accept that the applicant signed as guarantor for a friend’s loan. I do not accept that the friend disappeared and the applicant became responsible for the loan. I do not accept that the applicant was threatened and harmed by a loan shark and his associates. I do not accept that the applicant reported the threats to the police. I do not accept that the applicant fears harm from a loan shark if he returns to Taiwan.
For the reasons given above, I am not satisfied that, if the applicant were to return to Taiwan now or in the reasonably foreseeable future, there is a real chance that he will be harmed because of a debt to a loan shark or from any other person or persons for any of the other reasons set out in s.5J(1)(a) of the Act. I find that the applicant does not have a well-founded fear of persecution in Taiwan.
As I do not accept that the applicant owes a debt to a loan shark, I also do not accept that there is a real chance of serious harm from the loan shark or gangsters or other parties, were the applicant to return to Taiwan in the reasonably foreseeable future.
I am not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.
Does the applicant meet the complementary protection criteria?
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. For the reasons set out earlier I do not accept that the applicant was threatened by loan sharks or gangsters in relation to a debt. For the same reasons, I am 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.
I am not satisfied, therefore, that there are substantial grounds 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.
CONCLUSIONS
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.
Catherine Wall
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 2132

17 May 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction