1832368 (Refugee)

1832368 (Refugee) [2021] AATA 3659 (14 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1832368
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:James Lambie
DATE:14 July 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 July 2021 at 11:49am
CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from underground bank and gang, with collusion of police – unable to repay loan for mother’s operation – assaulted and property damaged – no response to tribunal’s communications or appearance at hearing – unable to test claims and evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2), 65, 426A
Migration Regulations 1994 (Cth), Schedule 2, cl 866.211
CASES
BZADA v MIAC [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 12 October 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Taiwan, applied for the visa on 18 July 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 under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
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 (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant claims to be a [age]-year old man from Taiwan.
The applicant first arrived in Australia [in] June 2016 as the holder of a [Visa Type 1].
The applied departed Australia [in] October 2016, returned to Australia [in] November 2016 and departed Australia [in] May 2018 pursuant to his [Visa Type 1] visa.
The [Visa Type 1] visa ceased on 1 June 2018.
[In] June 2018, the applicant arrived in Australia pursuant to a [Visa Type 2] visa.
On 18 July 2018, the applicant lodged an application for a Class XA, Subclass 866 (Protection) visa, which was subsequently refused by the Department in a decision made on 12 October 2018.
On 4 November 2018, the applicant applied for merits review of the Department’s decision of 12 October 2018 to refuse to grant his application for a protection visa.
Claims:
The applicant claims to seek protection in Australia so that he does not have to return to Taiwan. He claims to have suffered persecution from the Taiwan government because they were unable to repay an underground bank. He claims to have borrowed money for his mother’s operation and the interest rate was high.
The applicant claims that one day the underground bank sent people to collect the money and beat him and his mother when they could not repay it. He claims he contacted the police who ignored them. He claims his friend told him that the police, gangs and bank colluded together.
The applicant claims he wrote a letter to distribute to get society’s attention.
The applicant clams the gang sent people to catch him and he was scared and escaped to Australia.
The applicant claims he tried to move to another part of the country, but the underground bank and gang collude with the police and protect each other. He claims he will be caught by the police if he returns to Taiwan and will go to prison, be persecuted physically and mentally and will die. The applicant claims the police are corrupt and only care for their own benefits.
The applicant claims the whole of Taiwan is the same.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application, which was lodged on 18 July 2018;
·The applicant’s identity documents being a copy of his passport issued by the Republic of China (Taiwan) provided to the Department;
·The protection visa decision record dated 12 October 2018 (the delegate’s decision);
·The application for review form dated 4 November 2018;
·Department file [number] in relation to his protection visa application; and
·Country information on Taiwan, referred to below.
Country of reference / receiving country:
The applicant claims to be a citizen of Taiwan. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Taiwan is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
On 28 May 2021, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 30 June 2021. The letter advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent to the applicant by email at the email address provided in the application for review. That correspondence returned from the applicant with a ‘return to sender’ notification stating that delivery had failed. The only other contact details provided by the applicant in his application for review was his postal address. In the circumstances, on 28 May 2021, a copy of the hearing invitation was sent to the applicant by express post at the postal address provided in his application for review. Australia Post tracking information indicates that this correspondence was delivered and left in a safe place at the applicant’s postal address on 31 May 2021. The correspondence had not been returned from the applicant and the Tribunal received no response.
On 23 June 2021, the Tribunal sent a hearing reminder to the applicant by email at the email address provided in the application for review. That correspondence returned from the applicant with a ‘return to sender’ notification stating that delivery had failed.
On 16 June 2021 and 23 June 2021, the Tribunal sent hearing reminders to the applicant by express post at the postal address provided in his application for review. Australia Post tracking information indicates that this correspondence was delivered to the applicant’s postal address on 18 June 2021 and 25 June 2021. That correspondence had not been returned from the applicant and the Tribunal received no response.
On 29 June 2021, the Tribunal wrote to the applicant advising that the hearing scheduled on 30 June 2021 had been postponed to 14 July 2021 due to COVID-19-related lockdowns in Brisbane. The letter advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent to the applicant by email at the email address provided in the application for review. That correspondence returned from the applicant with a ‘return to sender’ notification stating that delivery had failed. The only other contact details provided by the applicant in his application for review was his postal address. In the circumstances, on 29 June 2021, a copy of the hearing invitation was sent to the applicant by express post at the postal address provided in his application for review. Australia Post tracking information indicates that this correspondence was delivered at the applicant’s postal address on 1 July 2021. The correspondence had not been returned from the applicant and the Tribunal received no response.
On 7 July 2021, the Tribunal sent a hearing reminder to the applicant by email at the email address provided in the application for review. That correspondence returned from the applicant with a ‘return to sender’ notification stating that delivery had failed.
On 7 July 2021, the Tribunal sent a hearing reminder to the applicant by express post at the postal address provided in his application for review. Australia Post tracking information indicates that this correspondence was delivered to the applicant’s postal address on 9 July 2021. That correspondence had not been returned from the applicant and the Tribunal received no response.
The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. The applicant failed to provide any reasonable explanation as to why he could not attend at the scheduled time. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
Accordingly, this matter has been determined on the evidence available to the Tribunal.
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of 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, 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal also notes that the recent decision of the Federal Court in BZADA v MIC andRRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The Tribunal has carefully considered the applicant’s claims as detailed in his application for a protection visa, both individually and cumulatively. The applicant did not take the opportunity to attend the hearing and did not provide additional information in support of his claims, even after having been advised of the delegate’s decision. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
The applicant’s written claims were very brief and general, and relate to the applicant having suffered assault and property damage at the hands of a loan shark, and to a fear that he may suffer harm at the hands of the loan shark, his or her associates, or the police.
Had the applicant attended the hearing, the Tribunal would have asked him for further detail about his claims, which would have afforded him an opportunity to address their lack of specificity and to respond to the decision of the delegate. He would also have been able to provide further information and evidence.
On the material presented, the Tribunal has insufficient evidence as to:
·details and evidence of the money borrowed;
·details and evidence of the person from whom the applicant borrowed money and how and why he had resort to that person;
·details and evidence as to the terms of the loan;
·details and evidence as to the visit the debt collectors, and the injuries sustained by him and his mother;
·details and evidence of the complaint made to the police, and of any response by the police to that complaint;
·details and evidence of the information he received as to the police protection enjoyed by the loan shark;
·details and evidence of the “public letter” he claims to have written and the means by which it was distributed;
·details and evidence of the response of officials, associates of the loan shark and the police; and
·details and evidence of his claims as to why, if he returned to Taiwan, he would have reason to fear the police and the associates of the loan shark.
The Tribunal has had regard to the following country information regarding state protection and the rule of law relevant to the applicant’s claims.
The Tribunal finds that Taiwan has a low crime rate and one of the lowest violent crime rates worldwide. There is extensive CCTV coverage throughout Taiwan, which plays a significant role in deterring the majority of criminal activity, as the overall crime rate is 1.3%, and overall violent crime in Taiwan is at a worldwide load of just 0.01%.[1]
[1] Taiwan 2016 Crime and Safety Report, Overseas Security Advisory Council (OSAC), US
The NPA’s main missions are to carry out police and law enforcement in Taiwan, maintain public order, uphold the safety of its citizens and society, prevent hazards, and to promote the welfare of its citizens.[2] In 2016, an independent survey showed rising levels of confidence in citizen satisfaction with the police, reaching over 73% that year.[3]
[2] Ibid
[3] Ibid
The US Department of State’s Taiwan human rights report for 2016 states that the NPA of the Ministry of the Interior has administrative jurisdiction over all police units. Civilian authorities maintained effective control over the NPA and authorities had effective mechanisms to investigate and punish abuse and corruption. The law provides criminal penalties for corruption by officials and authorities generally implemented the law effectively.[4]
[4] Taiwan – Country Report on Human Rights Practices 2015, US Department of State, 13 April 2013,
Country information confirms that major operations against criminal gangs involved in loan shark and other associated activities are carried out in Taiwan. Violations of domestic financial rules, such as loan shark ring operations or underground economic activity, totalled 947 cases or 19% of total economic crimes from January to August 2016, causing a loss of TWD 6.3 billion, or 36.5% of total losses from economic crimes.[5]
[5] ‘IPR violations make up majority of economic crimes in Taiwan’, Focus Taiwan, 22 October 2016,
The Tribunal has had regard to media reports that confirm that the NPA has carried out nationwide operations on “loansharking”. The NPA referred victims and debtors to telephone numbers when faced by gangsters who use violence to recover money.[6]
[6] Taiwan Quick Take: Cops bust loan sharks, Taipei Times, 15 August 2006
The Consumer Financial Protection Bureau enforces the Fair Debt Collection Practices Act in Taiwan, which states that debt collectors may not “harass, oppress or abuse you” and “a debt collector is not allowed to discuss a debt with anyone else”. A victim can report a problem to the State Attorney General’s Office, the Federal Trade Commission, and the Consumer Financial Protection Bureau.[7] Although the Tribunal accepts that independent evidence indicates that gangs are involved in debt collection in Taiwan, it also indicates that the police and other crime prevention agencies take action against those involved in harassing or harming people.[8]
[7] Taiwan News, ‘In Debt and Afraid: Dealing with Debt Collectors’, 26 March 2015,
Moskowitz, Marc L., Popular Culture in Taiwan: Charismatic Modernity, Routledge Research on

Because the applicant did not appear and provide evidence as to how he had particularly been affected by the activities of the loan shark, including the extent of harm, if any, suffered by him, or provide evidence as to when and how he sought police protection and why the police did not offer him protection from serious harm, the Tribunal is unable to be satisfied that there is a real chance that on return to Taiwan, either now, or in the reasonably foreseeable future, that the applicant would be persecuted or suffer serious or significant harm.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of the public letter he issued relating to his treatment, or of any debt he might owe to a loan shark, or for any other reason, if he returns to Taiwan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Taiwan. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
The Tribunal has considered the applicant’s claims in terms of complementary protection.
Having regard to the findings of fact above, I do not accept that the applicant left Taiwan because he feared for his physical safety.
In view of these findings, I am not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Taiwan now or in the reasonably foreseeable future. Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, as well as having considered his personal circumstances, I am not satisfied that the applicant will be arbitrarily deprived of his life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment, or he will be subjected to degrading treatment or punishment if he returns to Taiwan now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the circumstances above, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason, including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s. 5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan that there is a real risk that he will suffer significant harm.
Overall conclusion
For the reasons 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 of 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.
James Lambie
Senior 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.
…

Department of State, 12 July 2016, Political, Economic, CIS38A80123296

OGD95BE929327, p5, Section 1e.

CX6A26A6E11717

Taiwan, 2010

[2021] AATA 3659

14 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction