1906157 (Refugee)

1906157 (Refugee) [2024] AATA 3259 (3 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906157
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Brendan Darcy
DATE:3 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 May 2024 at 11:47am
CATCHWORDS
REFUGEE – protection visa – Taiwan – illegal money lending – insufficient information before the Tribunal – effective state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 425
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Republic of China (Taiwan), applied for the visa on 29 August 2018. The delegate refused to grant the visa on the basis that there were sufficient and effective protection measures available to him as it arose out of the available country information.
On 10 April 2024, the Tribunal received a response to the hearing invitation scheduled for 3 May 2024 in which the applicant requested the Tribunal to determine the matter ‘on the papers’ before it and confirmed that she would not attend a hearing.
The Tribunal is satisfied that requirements under s425(1) of the Act are met and the obligation to invite the applicant to appear ceases pursuant to s425(2)(b).
The delegate refused to grant the visa on the basis that there was sufficient protection measure available to the applicant arising out of the available country information.
On 2 May 2024, the Tribunal received a response to the hearing invitation scheduled for 3 May 2024 in which the applicant requested the Tribunal to determine the matter ‘on the papers’ before it and confirmed that he would not attend a hearing.
The Tribunal is satisfied that requirements under s425(1) of the Act are met and the obligation to invite the applicant to appear ceases pursuant to s425(2)(b).
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 (DFAT), 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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born on [date] in Taiwan.
The applicant first arrived in Australia [in] April 2014 while holding a Class TZ Subclass 417 working holiday visa. This visa was valid until 24 April 201. The applicant departed Australia [in] March 2015.
While offshore, the applicant lodged a further Subclass 417 visa on 28 October 2015. That visa was granted on 9 February 2016. This visa was valid until 6 February 2018.
The applicant returned to Australia on that visa [in] February 2017. November 2016 which remained valid until 2 March 2018. The applicant departed Australia for second time [in] February 2018.
The applicant returned to Australia [in] June 2018 while holding a Class UD Subclass 601 (Electronic Travel Authority) visitor visa.
The applicant applied for a Class XA Subclass 866 protection visa on 29 August 2018 and was subsequently granted an associated bridging visa.
A copy of the applicant’s now expired Taiwanese passport is on his Departmental file. ([File number]).
The applicant’s written claims for protection and the evidence he provided in support of his claims are contained in a submitted online application form. The applicant’s claims for protection are summarised below:
·     The applicant ‘suffered persecution’ by the ‘underground bank and gangdom’ in Taiwan being unable to repay money to them;
·     The applicant‘s mother had a car accident ‘a few years ago’ and has since had ‘several operations to save her life’. As the applicant’s family is poor, it needed to take out a high interest rate loan from the ‘underground bank’ to save the applicant’s mother’s life;
·      The applicant’s family tried to save the money to repay the loan over a period of several years; however, the underground bank did not want to wait for a long period and started to increase the interest rate on the loan and threaten the applicant and his family members;
·     The underground bank sent people out to the applicant’s home to collect the money.
·     As they were unable to repay the money, the applicant and his parents were beaten by these people. The applicant was hit on his head and body and his nose was bleeding and fractured;
·     The applicant called the police but was ignored. The applicant’s parents were worried about his safety and sent him abroad;
·     The applicant’s neighbour told him that ‘the gangdom’ is the ‘protective umbrella of the underground bank’ and that the criminals often sent people to harass the applicant’s family and threaten his parents;
·     The applicant became very worried about his parents and returned to Taiwan. The gangdom found out about the applicant’s whereabouts and sent people out to ‘catch’ him;
·     As the applicant was not at home, he survived, but he became very scared and fled to Australia to escape;
·     The applicant is unable to get assistance from authorities in Taiwan as the government is corrupt and working together with ‘the underground bank and gangdom’. The police collude with ‘the underground bank and gangdom’ and they protect each other; and
·     If the applicant returns to Taiwan, he fears he will be caught by the police, imprisoned and persecuted to death
The application form also stated that his marital status was ‘never married’; that his ethnicity is Taiwanese and that he has not religion religion is Buddhist. It also states he can speak, read and write Mandarin (Chinese).
No supportive documents to corroborate the applicant’s claims were provided to the Department.
The applicant was not invited to an interview with the Department.
On 18 February 2019, a delegate acting on behalf of the Minister refused to grant the applicant a protection visa.
On 15 March 2019, the applicant applied to have the refusal decision reviewed by the Tribunal without a copy of the delegate’s decision record attached.
On 10 April 2024, the Tribunal emailed the applicant an invitation to attend a scheduled hearing for 3 April 2024.
On 1 May 2024, the Tribunal received a hearing response indicating that the applicant will not participate in the scheduled hearing, and he consented to the Tribunal making a decision by determining the matter ‘on the papers’ without taking further steps to allow the applicant to appear. (On 2 May 2024, the Tribunal email the applicant to seek confirmation of this request out of an abundance of caution. However, the Tribunal did not receive a timely response.)
At no time during this application for review did the applicant forward any other information in relation to his claims for protection or about the current situation in Taiwan.
As the applicant consented to this course of action, the Tribunal has decided to make this decision on the evidence before it pursuant to section 425(2)(b) of the Act.
Available country information
Independent evidence indicates that corruption in Taiwan is low by international standards. Transparency International gave Taiwan a score of 68 out of a possible 100 in its 2021 Corruption Perceptions Index.[1] Petty corruption is uncommon and high-profile corruption in Taiwan’s bureaucracy is rare and usually involve politically nominated officials rather than civil servants.[2] An anti-corruption body was set up in 2011 and international sources assess that it effectively prosecutes corruption.[3] Whistle-blowers are protected by law.[4]
[1] 'Corruption Perceptions Index 2021', Transparency International, 24 January 2022, 20220125192959. Note, The score represents the perceived levels of public sector corruption in 180 countries/territories worldwide. The higher the score the less corrupt a country is perceived to be.
[2] BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.29,
[3] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.11, 'Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, pp.9-10
[4] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.29
Taiwanese police are effective and the crime rate is low. Violent crime rates are among the lowest in the world and crime is generally low.[5] Excessive use of force by police is rare, and lawyers are allowed to monitor interrogations to prevent torture.[6] A 2021 independent survey measuring public satisfaction with justice and crime prevention policies shows that for the third consecutive year more than 80 percent of the respondents were satisfied with the police in maintaining public safety.[7] The Constitution prohibits arbitrary arrest and detention and this principle is generally observed by authorities.[8]
[5] ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021,
[6] ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021,
[7] 'Freedom in the World 2022 Taiwan', Freedom House, 9 June 2022, F3, 20220614105607 ‘Public Satisfaction with the Police is over 80% in 3 Consecutive Years Citizens Support Drug Enforcement, Fraud Prevention and Various Measures by the Police’, Ministry of Interior ( Taiwan), 25 February 2022
[8] ‘Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, p.2; 'Freedom in the World 2022 Taiwan', Freedom House, 9 June 2022,
Usury is a commonly reported crime.[9] Some usury activities are linked to organised crime. Some people borrow money to support business interests, including for ventures involving mainland China.[10] In March 2021 police arrested eight suspected gang members accused of using violence and intimidation to collect money on behalf of creditors.[11] Usury is a hidden crime and little information is available about it.
[9] ‘Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019
[10] 'Banqiao bank robber caught by New Taipei Police', Taiwan News, 5 March 2019; ‘Widespread Chinese antipathy 'real danger' to Taiwan: official’, Taiwan News, 4 September 2019
[11] ‘8 gang members arrested for illegal collection of debts in Taipei’, Focus Taiwan, 14 March 2021
Police actively target loan sharks. Usury is a crime that can attract a penalty of up to five years in prison.[12] The law proscribes lending money at an ‘obviously’ inappropriate interest rate based on the ‘urgent need, carelessness, inexperience or lack of other resort’ of the borrower.[13] Monitoring, intrusion upon, threats, intimidation and actual harm in an effort to instil fear are all criminalised.[14]
[12] 'Criminal Code of the Republic of China', Government of Taiwan, as amended to 15 January 2020, arts 344 and 344-1
[13] 'Criminal Code of the Republic of China', Government of Taiwan, as amended to 15 January 2020, arts 344
[14] 'Criminal Code of the Republic of China', Government of Taiwan, as amended to 15 January 2020, arts 344 and 344-1
Loan sharks have been targeted in broad crackdowns against criminals.[15] Police operations against loan sharks are reported in the Taiwanese media and hundreds of loan sharks have been arrested in recent years.[16]
[15] 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019
[16] ‘8 gang members arrested for illegal collection of debts in Taipei’, Focus Taiwan, 14 March 2021, 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019, 'Police tout results of raids on gun, loan operations', Taipei Times, The, 24 June 2019
Taiwan’s court system is free and fair. Courts are independent, fair and generally free of corruption.[17] All defendants are presumed innocent until proven guilty and have the right to a lawyer and to be present at trial.[18] The most recent data of the World Values Survey (2019) shows that 56 percent of respondents in Taiwan expressed at least “quite a lot” of confidence in the judiciary.[19]
[17] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11,
[18] 'Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, p.4,
[19] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11,
Nevertheless, large numbers of Taiwanese harbour long-standing and deep-seated mistrust in the effectiveness, political impartiality and fairness of the court system and judges.[20] Some Taiwanese feel that the judicial system is unfair in rulings related to high profile political cases and President Tsai highlighted judicial reform as one of the core policy goals of her administration in order to address popular mistrust in the country’s court system.[21] The government has committed to addressing some of these concerns and has made some progress on judicial reform.[22]
ASSESMENT OF CLAIMS AND FINDINGS
[20] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11,
[21] ‘BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.10, 20220224094729
[22] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729
Country of nationality
It is not in dispute that the applicant is a Taiwanese national and a copy of his national passport is on departmental file. The Tribunal finds the applicant is a Taiwanese citizen and has assessed his claims against the Republic of Chinas as his country of nationality and the receiving country.
There is no suggestion the claimant has right to enter and to reside, either temporarily or permanently, into a third country as required by s 36(3).
Findings and reasons
In these circumstances, and pursuant to s 425(2) of the Act, the review has been decided on the material before the Tribunal.
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 the 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 Tribunal is not satisfied from the brief information provided in his application that in 2018 the applicant was borrowed money from any illicit money lending outfit, loan shark or underground bank with connections or associations with ‘gangdom’ and organised crime syndicates. Given the applicant had claimed his mother had been undergoing medical treatment, the applicant had ample opportunity to provide translated documents from hospitals or medical professionals to substantiate this element of his claim. Given the paucity of information, the Tribunal is not satisfied as to the quantum of money borrowed, the terms of that arrangement or that the overall claim has any credible weight.
For the same reason, the Tribunal is not satisfied that the applicant’s family were in a position to pool their resources to afford medical bills or that the family could be reasonably characterised as poor or struggling.
There are no approximate or precise dates as to when incidents occurred. Had he attended an interview, the Tribunal may have elicited further information about a number of matters, including, the frequency, nature and approximate timelines of the threats and acts of harm to the applicant and his family members; how threats were conveyed; evidence of police reports, if any, and details about the applicant’s interactions with the authorities; and whether the illicit money lenders and criminal syndicates had names or prominent leadership.
The Tribunal notes the applicant’s claims were advance in 2018 and it is now 2024. Had the applicant attended a hearing, it would have enquired into whether the applicant or family members had any ongoing contact with criminals and whether the applicant had paid down any amount of the claimed borrowed money.
Without these details, the Tribunal cannot be satisfied, on the limited information provided, that the applicant was threatened by criminals because his family borrowed money from an underground bank or that that he was denied protection from Taiwan’s police and others in authority.

The applicant also claimed that if he returned, he would be caught by the police, the underground bank and ‘gangdom’, who he said, ‘colluded with the police’ and he feared being imprisoned or even killed by the police. This claim that he would be imprisoned in Taiwan would appear far-fetched and was somewhat undermined by making earlier complaints to the police.
The applicant was aware that the Department did not accept that he feared persecution for any of the reasons provided in s 5J(1)(a) of the Act, and did not accept that the Taiwanese authorities, including the police and judiciary, were not effective in combating illegal money lending and that there was a real risk he would suffer significant harm within a reasonably foreseeable future on his return to Taiwan. He would be aware that this was based on the available country information outlined in the decision record.
Had the applicant provided evidence at a hearing, the Tribunal would have discussed the country information outlined above indicating that the authorities take very seriously breaches of laws against illicit money lending and organised crime and the protection measures from the criminal laws, the police and judiciary are durable and effective. The Tribunal cannot be satisfied, on the very bare information provided, that anyone would want to harm the applicant if he were to return to Taiwan.
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 is mere speculation’. As the Tribunal has not accepted that the applicant was asked to provide investment funds to a company or that he was visited by gangsters because he reported the company to the police, the Tribunal also does not accept that there is a real chance, that is a substantial chance (Chan v MIEA (1989) 169 CLR 379), of serious harm from the gangsters or other parties, were the applicant to return to Taiwan in the reasonably foreseeable future. The Tribunal is satisfied that the fear is speculation only, rather than a well-founded fear of persecution (MIEA v Guo (1997) 191 CLR 559).
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.
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).
As outlined above, there is no substantiated or credible evidence before this decision maker to accept the claims vaguely outlined in his written claims. Moreover, the applicant has not elaborated upon in any way since this application for review was lodged, including by attending a hearing.
Having considered the applicant's circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are 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 the applicant will be arbitrarily deprived of his life or the death penalty will be carried out on him, or subjected to torture, or to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
Accordingly, the Tribunal finds the applicant does not meet the requirements of s.36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
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 3259

3 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction