1925487 (Refugee)

1925487 (Refugee) [2022] AATA 3838 (24 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1925487
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Penelope Hunter
DATE:24 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 August 2022 at 1:51pm
CATCHWORDS
REFUGEE – protection visa –Taiwan – involved in traffic accident with police car – harm from police – payment for damages – credibility issues – effective protection available – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
CASES
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 22 August 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 Taiwan, applied for the visa on 28 February 2019. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person to whom Australia had protection obligations under the Act.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
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.
Claims and evidence
The applicant is a single male [age]-year-old, born in [Taiwan]. In his visa application he lists his occupation as a student, sets out that he completed post-secondary school education in Taiwan at [named] College. The applicant has no dependants, or siblings and his parents continue to reside in Taiwan.
The applicant first arrived in Australia on a Working Holiday visa [in] June 2014 before departing [in] June 2016. The applicant returned to Australia [in] April 2017, this time on an Electronic Travel Authority visa. The applicant was then granted a Subclass TU-500 Student visa on 1 June 2017 before applying for the visa under review on 28 February 2019.
In his visa application the applicant set out the following claims for protection:
i.He left Taiwan because he had a traffic accident with a police car while riding his motor bike in February 2017. After that the police (station) asked him to pay for their car, TWD3,000,000. His father had been sick for 10 years and his mother worked as a cleaner. He could not pay that amount.
ii.A few weeks later, five young men came to his house and hurt him and his mother and asked for the money again. The applicant said that he could pay every month, but they wanted the money upfront otherwise they would send him to jail until his father made payment.
iii.He had asked the repair shop to fix the police car and the price was TWD3,000. The police were demanding too much.
iv.He was harmed in the past in Taiwan when the police came to his home and beat him and his father with a baton.
v.He believes that if he returns to Taiwan he will be taken to the local jail and his family asked to pay more money. The police will catch him and hurt him because they do not want him to tell anybody about them.
vi.They had called the police many times to ask for help but they never got an answer from them. The authorities will not protect him as the police in his hometown are powerful and normal people like him cannot change anything.
vii.He could not move to another part of Taiwan as everything was in the police system and they would find him very easily. They would find him very easily wherever he moved to. His sick father also cannot walk.
On 15 March 2019, the Department sent the applicant a letter acknowledging his visa application, and requested that he attend an appointment to provide personal identifiers on 25 March 2019. The applicant was also invited to provide any additional information to the Department that he would like considered. The letter further informed the applicant that a decision could be made on his application without another opportunity to present further information.
No additional material was supplied to the Department, and on 22 August 2019, the delegate proceeded to a decision to refuse the visa.
The Tribunal received an application for review from the applicant on 11 September 2019, together with a copy of the decision record of the delegate.
The applicant was invited to a hearing before the Tribunal on 1 June 2022, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant confirmed at the commencement of the hearing that he did not have any additional documents or material to submit to the Tribunal. Where relevant the Tribunal has discussed the evidence presented by the applicant at hearing below.
FIndings, reasons and consideration of claims and evidence
Nationality
It is accepted that the applicant is a national of Taiwan on the basis of the passport, that he has submitted to the Department and the Tribunal, together with his oral evidence. The Tribunal will assess his claims on that basis. The Tribunal further accepts that he does not have the right to permanently enter and reside in any country other than Taiwan. The Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act, and that Taiwan is the receiving country for the applicant for the purposes of s 36(2)(aa) of the Act.
Does the applicant have a well-founded fear of persecution and is the applicant a refugee?
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, an applicant’s claim 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.
A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. 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 169–170.
The Tribunal found elements of the applicant’s oral evidence lacked consistency with his written claims. He appeared to embellish considerably his evidence at hearing and then was unable to corroborate the claims with plausible details. His claims also lacked corroboration and the Tribunal is not satisfied that the applicant had a satisfactory explanation for these additional embellishments, inconsistencies and lack of corroboration. Furthermore, the Tribunal was not satisfied that the claims of the applicant were supported by independent country information. Ultimately, considering the totality of the material before it, the Tribunal is not satisfied that key elements of the applicant’s claims are reliable or credible. The reasons why the Tribunal has reached these conclusions are discussed below.
The inconsistencies presented by the applicant at hearing when compared to his written claims were numerous, and generally when these were identified to the applicant and he was asked to comment he could offer no explanation. Firstly, the applicant did not refer to being taken to hospital following the accident with the police car in his written claims. Rather he made reference to the police station following the accident, and a request to pay TWD3,000,000. In his evidence to the Tribunal, he claimed that the police took his statement during the week he was in hospital. He did not claim to attend the station and he did not mention a request for any payment at this time. Additionally, in his written claims the applicant referred to a demand by the police for payment or he would be sent to jail. The applicant made no reference in his oral evidence to this threat. When asked to comment on these differences the applicant declined. It is of considerable concern for the Tribunal that the applicant could not provide consistent evidence as to what happened in the immediate aftermath of the accident.
Secondly, the applicant described for the Tribunal at the hearing two occasions when men, who claimed to be police came to his home following the accident and demanded money. His written claims make reference only to one incident and did not include an earlier incident that he described at the hearing, which he claimed occurred approximately two weeks after his release from hospital, while he was still at home recovering. At this time he alleged only two alleged police officers came to the house. When asked to comment on this discrepancy, the applicant offered that maybe the person who assisted him to write his written claims omitted the matter. The Tribunal does not accept this explanation and it is further noted that the applicant confirmed at the commencement of the hearing that his written claims were accurate, he had reviewed them and he had no additions to make. The applicant’s inability to explain the difference undermined for the Tribunal the reliability of his claims.
Thirdly, when the applicant was describing the incident when four to five men attended his home approximately 6 weeks after the accident, he told the Tribunal that he paid the men TWD300,000 to cease their harassment. The applicant made no reference in his written claims that he had made any payment at this time. When asked to comment on this omission from his written claims the applicant declined. It is considered that if the event actually occurred and the applicant had made payment as described in his oral evidence he would have included this information in his written claims.
Fourthly, the Tribunal asked the applicant at the hearing if he was ever harmed by the police, the men who came to his home or anyone else before he departed Taiwan and he did not identify any incident. It is accepted that he did identify at hearing that the second time men purporting to be police came they smashed items in his home. When asked whether his parents were ever harmed, at the hearing the applicant provided evidence to the Tribunal that his father was pushed by the police the second time they attended his home. In contrast in his written application the applicant made claims that the first time the police went to his home they beat him and his sick father with a baton. When invited to comment on this discrepancy at the hearing, the applicant offered that at the time of his written claims they may have been written in a more serious manner. It appeared to the Tribunal that the applicant conceded the inconsistency, and it is not satisfied that claiming something is described in a more serious manner, is other than an embellishment, or that it explains the difference and lends any reliability to the applicant’s evidence.
Fifthly, the applicant made further claims of ongoing payments to the police at the hearing that were not contained in his written claims. The Tribunal was unable to obtain a satisfactory explanation from the applicant for this omission. Further, he was initially unable to explain to the Tribunal how he came to the payment arrangement and offered initially that he made an additional payment of TWD50,000 shortly before his departure from Taiwan. The Tribunal had to question the applicant several times as to the manner of payment, the process of making the payment and when agreement was made, and it is not satisfied that the applicant ultimately provided a satisfactory explanation. The applicant appeared to backtrack and claimed the arrangement was made to make payments of TWD20,000 per month to pay off the demand for TWD3,000,000, when the five to six men visited his home. But the applicant was unable to provide the Tribunal details of the conversation that led to this arrangement. He also claimed that there was an arrangement to pay off TWD200,000 per year. The Tribunal was unable to reconcile a “one off” payment of TWD50,000, with claims of TWD20,000 per month or an annual payment of TWD200,000 per year. When these concerns were put to the applicant he could only offer that he was speaking generally and TWD20,000 per month was roughly TWD200,000 per year. The Tribunal could also not obtain a satisfactory explanation from the applicant as to when payments switched from cash to bank transfers. The Tribunal considered that if the applicant had made an instalment arrangement with the police then it is something he would have referred to in his written claims. Furthermore, it also considers that if he had come to an arrangement he would be clear on the terms of the agreement and when it was made. The unsatisfactory nature of the applicant’s evidence in relation to these matters demonstrated to the Tribunal that it may not be factual.
Sixthly, the applicant referred in his oral evidence to making payments to a man by the name of ‘Boss [A]”. The applicant could not explain to the Tribunal why he had not made any reference to this individual in his written claims. The applicant was evasive in his questioning as to how he came to know this individual or whether he was a police officer. The applicant offered that he was a police officer or associate of the police. The constant shifts, and additions to the applicant’s evidence demonstrated to the Tribunal that the applicant was not speaking to events that had actually occurred in his home country and undermined the reliability of his claims.
Seventhly, the applicant told the Tribunal in his oral evidence that he telephoned the police, reported the harassment and requested assistance on the two occasions he claimed men purporting to be police attended his home to demand money. Additionally, on each occasion he claimed that there was a response, further police attended to investigate and took a statement from the applicant. In his written claims the applicant set out that he had never gotten any answer from the police when he called them. The applicant declined to offer any explanation to the Tribunal when invited at the hearing to explain this discrepancy.
Eighthly, after he departed for Australia the applicant told the Tribunal that his parents had relocated to the mountains to live near other family members. When asked to identify the approximate time that they relocated, the applicant provided evidence that it was approximately six months after he departed, around October 2017. The Tribunal considered this evidence at odds with material in his written claims, particularly that he had not provided information about his parents relocating from his former residential address, and also he stated that he could not relocate because he had a very sick father who could not walk. Additionally, the applicant made claims at the hearing that a few months after they had relocated the police contacted his parents and demanded the applicant resume the payment of instalments. There is no mention of this demand in his written claims and the applicant declined the opportunity to offer an explanation for any of these matters further detracting from his reliability and his credibility of his claims.
Ninthly, in his written claims the applicant set out that he had already asked the shop to fix the police car and the price was TWD3,000. When the Tribunal asked the applicant at hearing about the damage to the police car, if it had been repaired and the costs, the applicant claimed that he had no knowledge. It was clearly put to the applicant at hearing that the multiple inconsistencies identified undermined the accuracy of his claims, yet again when invited to comment on this matter the applicant declined.
It was also of concern to the Tribunal that the applicant had no evidence to corroborate his claims. In particular there was no evidence to support his claim of a motor vehicle accident with police, yet on his evidence to the Tribunal various events occurred which would have left a record. He said that he attended hospital due to fractures. When the Tribunal raised with the applicant that if he had attended hospital he should have medical records, the applicant said that he would have to look for them. The applicant said he was transported to hospital by ambulance. The Tribunal put to the applicant that there should also be ambulance records to support his claims and the applicant again indicated that he would have to check. The applicant confirmed that he had obtained a copy of the statement that he provided to the police when they visited him in hospital. The Tribunal then questioned the applicant as to why he had not produced a copy of his statement to support his claims and obtained no satisfactory explanation. As to the two additional statements that the applicant provided to police when then attended his home in response to his complaints, when questioned whether any copy would be available, the applicant said he could go back and try to find out. The applicant also confirmed that bank records should exist to support his claims to have been making payments to the police for over five years. At the end of the hearing the applicant responded negatively to the invitation from the Tribunal to provide further information. It remains that the applicant has not produced any records post hearing to support his claims. It was clear from the incidents described by the applicant at hearing that the events he claims which gave rise to his fear of harm and events that have occurred since his motor accident could be supported by evidence. That the applicant has not produced any supporting material and this lack of corroboration further demonstrated that his claims regarding his experience in Taiwan were not genuine.

The Tribunal also places weight on the substantial delay by the applicant in claiming protection. Although the motor vehicle accident occurred in February 2017, and the applicant arrived in Australia in April 2017, the next visa application that the applicant made while in Australia was for a temporary subclass 500 Student visa on 1 June 2017. It was not until almost 20 months later that the applicant made the application for the protection visa under review. The applicant identified nothing in his evidence or written claims that had happened proximate to this time to cause him to apply for a protection visa. When asked to explain the delay the applicant said that in the beginning he wished to just leave Taiwan and that he was not considering a protection visa. The Tribunal asked the applicant what he was studying and he responded that for the sake of the visa he was undertaking studies in accounting but offered that the problem with the student visa was that it restricted the amount of work that he could undertake. The Tribunal also discussed with the applicant at the hearing information contained in his Provider Registration and International Student Management System (PRISMS). The relevant information was that the applicant’s enrolment was cancelled on 19 October 2018 for disciplinary reasons, some four months prior to the protection visa application under review. The applicant was advised that the information was relevant, as it was only when he had ceased studying and was no longer complying with a condition of student visa, that he applied for a protection visa. The applicant was further told that if relied upon the Tribunal may consider that the visa application under review was an application of last resort for him to remain in Australia, rather than due to any genuine fear of harm in Taiwan. The applicant did not seek additional time to respond, and only sought a clarification from the Tribunal as to whether it was alleging his student visa was cancelled to which the Tribunal responded in the negative. The applicant then elected to provide no further response. On the material before it the Tribunal considers that the applicant’s decision not to lodge a protection visa application until February 2018, after he returned to Australia in April 2017, indicates that he does not have a genuine fear of harm in Taiwan.
It was also considered that the claims by the applicant were not consistent with independent country information. Particularly, it was put to the applicant that it was reported that the police in Taiwan are generally considered effective, that Taiwan has a low crime rate and that there is extensive CCTV coverage throughout Taiwan, which plays a significant role in deterring criminal activity.[1] Statistics show a high level of confidence and satisfaction by people in the Taiwanese police force.[2] Petty corruption is reported to be rare and high-profile corruption in Taiwan’s bureaucracy such as the police is also rare, and usually involves politically nominated officials rather than civil servants.[3] In these circumstances the Tribunal put to the applicant that the country information did not support that he would be targeted by the police for extortion for the reasons he had claimed. The applicant declined the opportunity to comment on this information.
[1] Taiwan 2018 Crime and Safety Report’, Overseas Security Advisory Council (OSAC), US Department of State, 2 July 2018,
[2] ‘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.
[3] BTI 2022 Country Report – Taiwan’, Bertelsmann Stiftung, 22 February 2022, page 29
The Tribunal also discussed with the applicant independent country information about established anti-corruption measures in Taiwan. The Tribunal noted that it was reported that Taiwan had a well-developed framework of strict anti-corruption which target things like bribery and corruption of police and public officials which formed the basis of the applicant’s claims. It was noted that offences for corruption carry heavy penalties including a maximum jail sentence of life in prison and fines up to TWD 100 million (USD 3.3 million) which had been codified. The 2011 Anti-Corruption Informant Rewards and Protection Regulation has put in place a framework to protect whistle-blowers reporting corruption and defines rewards for informing the authorities of corruption cases.[4] A range of agencies have been established to prosecute and minimise corruption. For example, an official Agency Against Corruption (AAC) was established in June 2011, and since 2013 an online database of government documents has further increased transparency.[5] In these particular circumstances the Tribunal considered that the applicant could access adequate protection, and if he had reported the demands upon him by police officers as he claimed at the hearing, these reports would have been taken seriously, acted upon and there are various ways for this to be followed up. The country information suggests that if the applicant was targeted by a member of the police force that he would be able to seek effective protection from another division within the force, or report it to an anti-corruption authority. The Tribunal is satisfied that there exists various avenues to access state protection and that it is available and that there are no impediments to that access. The Tribunal also had regard to the fact that when asked to comment upon this information, the applicant confirmed that he had nothing further to say.
[4] As above at page 30
[5] As above at page 11
Finally, at the time of the alleged motor vehicle accident with the police car, the applicant said that he was riding a motorbike. He confirmed that the bike was registered to drive on a public road and that he held a valid drivers licence. The applicant said that he had collided with the police car and was responsible for the accident. The Tribunal raised with the applicant country information that motor vehicle insurance was compulsory in Taiwan[6], the applicant confirmed for the Tribunal that he did not dispute this information. It was then put to the applicant that it was unlikely that in circumstances where insurance existed, and there was extensive CCTV coverage throughout Taiwan, it was not probable that police would make demands from him for compensation as claimed, in reply the applicant offered no further comment.
[6] >
Therefore, considered cumulatively, the multiple concerns regarding the evidence of the applicant, as outlined above, lead the Tribunal to conclude that he has not been a reliable or credible witness regarding his experiences in Taiwan, and the reasons that he fears harm if he was to return. The Tribunal is not satisfied that the applicant was involved in a motorbike accident with a police car, that he was responsible for the accident, that the police or anyone associated with the police, made demands upon him for the payment of money, or that he or his family have been threatened with harm if he does not make payments, or that he has been making payments to the police since 2017. It is not accepted that the police or anyone associated with the police have any interests in the applicant, or any members of his family for the reasons he has claimed. It follows that the Tribunal is not satisfied that, if the applicant returns to Taiwan now, or in the reasonably foreseeable future, he will be forced to repay the police, that he will be imprisoned or that he will be harmed in any way. In the Tribunal’s view, the applicant has fabricated these claims for the purposes of seeking a protection visa in order to remain in Australia.
For the above reasons, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm in Taiwan for the reasons he has claimed or due to his race, religion, nationality, membership of any social group or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
For the reasons given above, the Tribunal is not satisfied that the claims of the applicant to have experienced harm in the past arising from an accident with police, and subsequent demands for payment, are factual or credible. The Tribunal does not accept that he departed Taiwan for the reasons he has claimed. In addition, if any demand for payment or threat of harm was made of the applicant from police or anyone associated with the police, the Tribunal is satisfied that the applicant could obtain protection from the authorities in Taiwan such that there would not be a real risk of significant harm. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Taiwan, there is a real risk the applicant will suffer significant harm.
Therefore, the applicant is not 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 criteria in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Penelope Hunter
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.
…

[2022] AATA 3838

24 August 2022

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice