2005971 (Refugee)

2005971 (Refugee) [2020] AATA 3531 (19 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2005971
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Paul Windsor
DATE:19 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 August 2020 at 2:34pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – lack of job opportunities and high cost of living – no response to tribunal’s communications or participation in hearing – country information about economy, poverty and social welfare – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (5)(d)-(f), 36(2)(a), (aa), (2A), 65, 426A, 441A(5)
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
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 Immigration and Border Protection on 27 October 2016 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 27 November 2015.
In his protection visa application the applicant indicated he was born on [Date] in [Country]. He did not state his ethnicity or whether he practices any religion. He indicated he has never married. The applicant indicated he departed Taiwan legally [in] November 2013 on a Taiwanese passport issued [in] 2013, and arrived in Australia on the same day, entering on a visitor visa.[1]
[1] See the Departmental file.
In his application, the applicant indicated he sought protection in Australia because he could not live comfortably in Taiwan due to a lack of job opportunities and the cost of living being too high.[2]
[2] See the Departmental file.
The delegate refused to grant the visa finding that the claimed fear of harm in Taiwan is not for one or more of the five reasons mentioned in s.5J(1)(a) of the Act. In relation to the complementary protection criterion, the delegate, after considering relevant country information, was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Taiwan, there is a real risk he will suffer significant, as defined in s.36(2A) of the Act.
The applicant applied to the Tribunal for review of this decision on 24 March 2020. He did not provide the Tribunal with a copy of the delegate’s decision record.
Failure to participate in the scheduled hearing
On 8 July 2020 the Tribunal wrote to the applicant advising that the Tribunal had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The applicant was invited to appear by telephone before the Tribunal to give evidence and present arguments at a hearing scheduled for 2:00 pm on 18 August 2020. The applicant was advised that the telephone number the Tribunal has for him is [Number]. He was requested to advise if that number is not the correct number or if he would prefer the Tribunal call him on another number. The applicant also was requested to read and complete an attached ‘Response to hearing invitation’ form within 7 days of receipt of the letter.
The letter advised the applicant that if he was not able to participate in the proposed telephone hearing he should advise the Tribunal as soon as possible. He was advised to note that the Tribunal will only change the date if satisfied he has a very good reason for being granted an adjournment and, if the Tribunal did not advise him an adjournment had been granted, he must assume that the hearing will go ahead.
The applicant was also advised that if he did not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.
The applicant did not respond to the hearing invitation.
The applicant was sent SMS reminder messages regarding the hearing on 11 and 17 August 2020 to his mobile phone [number].
On 18 August 2020 eight unsuccessful attempts were made to contact the applicant on [Number], between 1:47 pm and 2:05 pm.[3]
[3] See the relevant case note in the Tribunal file.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) of the Act, the invitation was not returned to sender, and that SMS reminders about the hearing were sent to the mobile phone number provided by the applicant on two separate occasions. The SMS reminders did not return ‘delivery failed’ messages. The applicant did not respond to the invitation to attend the hearing and has not contacted the Tribunal to explain why he did not answer his phone and participate in the hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection were set out in his protection visa application. His claims were as follows:[4]
[4] See the Departmental file.
I am seeking protection in Australia so that I do not have to return to: TAIWAN
Why did you leave that country?
I LEAVE MY COUNTRY TAIWAN BECAUSE TAIWAN HOUSING IS TOO EXPENSIVE. TAIWAN NOW HAS THE MOST EXTREME SCENARIO IN THE WORLD IN TERMS OF WAGES VS. HOUSING PRICE. MANY TAIWANESE DO NOT MAKE THAN NT$40,000 - 60,000 A MONTH (US 1,300 – 1800) CAN’T AFFORD TO BUY A HOUSE INCLUDE ME. UPWARD MOBILITY IN CAREERS IS VERY DIFFICULT EVEN IF THEY WORK REALLY HARD THE ATTITUDE PEOPLE GET FROM BOSSES IS NOT TO BE CONGRATULATED AND REWARDED AND THERE IS NO PAID DURING THE SICK DAY. AND TAIWAN FOOD ACTUALLY ISN’T CHEAP PEOPLE IN TAIWAN EAT OUT THE MOST. TAIWAN’S ECONOMIC SITUATION HAS NOT BEEN IDEAL OVER THE LAST DECADE. I WANT TO APPLY FOR PROTECTION VISA BECAUSE I DON’T WANT TO LIVE AT TAIWAN MY ENTIRE LIFE I NEED TO APPLY FOR THIS VISA FOR NOT RETURN TO MY COUNTRY.
What do you think will happen to you if you return to that country?
LESS JOB OPPORTUNITY FOR ME AT TAIWAN AND THE LIVING COST IS TOO HIGH SO I’M NOT ABLE TO LIVE COMFORTLY AT MY COUNTRY.
Did you experience harm in that country? No
Did you seek help within that country after the harm? No
Did you move, or try to move, to another part of that country to seek safety? No
Do you think you will be harmed or mistreated if you return to that country? No
Do you think the authorities of that country can and will protect you if you go back? No
Do you think you would be able to relocate within that country to an area where you would not be harmed? No
Findings and reasons
Identity
On the basis of the copy of his Taiwanese passport submitted to the Department,[5] the Tribunal accepts that the applicant is a national of Taiwan and that his identity is as claimed. The Tribunal accepts that Taiwan is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[5] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Taiwan, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Assessment of claims
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. A decision-maker is not required to make the applicant's case for them. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. 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, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Claim to be unable to live comfortably in Taiwan because of the cost of living and wage levels
The applicant has provided little detail in support of his claim. He indicated in his protection visa application that he completed high school in mid-1996 but has not indicated what he did after he left school until he came to Australia. He did not provide any employment history in Taiwan and stated he is unemployed in Australia, but did not indicate how he is supporting himself or how he supported himself in the past. He has not provided any details of family in Taiwan or elsewhere and indicated he is not in contact with any relatives overseas.
The applicant has commented that housing in Taiwan is too expensive and that many people, including him, are unable to buy a home, but has not indicated where he was living in Taiwan, whether he was living with family and/or friends, and what they were paying for housing, either in rent or mortgage payments.
Country information indicates that average housing prices in Taiwan rose 70 per cent between 2005 and 2014 (when a ‘residential bull market’ ended) and doubled in the capital Taipei. A typical Taipei apartment costs 14.5 times the median annual household income, and housing in Taipei is more expensive, in terms of price-to-income ratio than Tokyo and Singapore. While demand is mostly domestic, the cost pressures in Taipei are due to lack of supply to meet demand due to a ‘deep-seated cultural preference for home ownership’ among Taiwanese, who do not view renting favourably, and activity by local property speculators. The Country information indicates that the government took measures in 2014 to control price growth, including introducing new taxes to discourage speculative residential property buyers. These measures have borne fruit and price growth has been relatively flat, at 1-2 per cent annually, since 2014. New apartments are now available in Taipei for between NT$7-20 million (US$232,000-664,000) which are popular with first home buyers and considered relatively affordable, although they tend to be small. Housing is more affordable outside Taipei, where the mortgage burden falls from 59 per cent of household income in Taipei City to 30% in Taoyuan, an hour from Taipei by car.[6]
[6] Housing Prices in Taipei: Levelled Off but Still High, Taiwan Business Topics, 13 February 2020, >
In considering the applicant’s claim the Tribunal also had regard to the following country information relevant to the economy, poverty levels and the social welfare system in Taiwan:
Taiwan economy
·     The current (August 2020) DFAT fact sheet on Taiwan indicates that:[7]
[7] DFAT Country Brief – Taiwan, Taiwan fact sheet, GDP per capita in 2019 was $US24,827.9 (up from $US22,572.7 in 2016).
    Real GDP growth in 2019 was 2.0% (the average GDP growth for the 6 years from 2014 to 2019 was 2.3%).
    Inflation in 2019 was 0.8% (1.0% in 2016).
    Unemployment in 2019 was 3.8% (3.9% in 2016).
·     In 2020 minimum wages in Taiwan increased to NT23,800 per month, from NT23,100 per month in 2019. The minimum wage was NT20,008 in 2016.[8]
Poverty levels
·     Statistics from the Pew Research Center indicate that Taiwan has a lower proportion of people living in poverty (the World Bank defines US1.90 per day as the global poverty line) than any other country in Asia (almost no people in Taiwan live on less than US$2 per day and only 0.7 per cent of the population live on between US$2-10 per day). Taiwan also has the largest proportion of people with a ‘high income’ in Asia (33.8 per cent live on over US$50 per day).[9]
Social welfare
·     With social welfare net expenditures accounting for 22.8% of the government budget in 2015 and 22.3% in 2016, Taiwan has one of the most comprehensive and well-developed welfare regimes in Asia. The social safety net is close-knit and provides for substantial protection against poverty and other social risks. The state provides a compulsory National Health Insurance (NHI) program for all citizens, including foreigners who have lived in Taiwan for more than six months, unemployment insurance, voluntary labor pension with portable retirement accounts, and mandatory coverage by a national pension scheme, which includes the unemployed, nonworking spouses and freelancers. Financial support is also given to the disabled and disadvantaged households, including living cost allowances, health care and special subsidies. Moreover, amendments to the Public Assistance Act, which came into force on July 1, 2011, stipulate the conditions of long and short-term assistance to lower and middle-income households by providing living subsidies covering different areas of threatened well-being. In May 2015, the legislature approved the Long-Term Care Services Act, which outlines the legal framework for a comprehensive strategy to deal with the long-term care requirements of Taiwan’s rapidly aging population.[10]
[8] ‘Taiwan Minimum Monthly Wage 1978-2020 Data’, Trading Economics, Taiwan contains lowest percentage of citizens living below poverty line in Asia, Taiwan News, 27 May 2019, BTI 2018 Country Report – Taiwan, Bertelsmann Stiftung, 23 March 2018, >
While the Tribunal accepts that there are housing cost pressures in Taiwan, especially in the capital Taipei, and that the applicant may not have been able to afford to buy his own home or to eat out as much as he would have liked, the Tribunal finds that there is nothing in the applicant’s evidence or in the country information to indicate or suggest that he was, or would be, unable to subsist in Taiwan.
While the country information indicates that wages in Taiwan are significantly lower than they are in Australia (the Taiwan minimum monthly wage of NT23,800 equates to AUD1,134 at the current exchange rate), indicators such as the inflation rate, unemployment rate, the rate of GDP growth over the last six years and per capita GDP indicate an economy that is performing reasonably well by global standards. The country information also indicates that Taiwan has a comprehensive and well-developed social welfare system, including in relation to support for the unemployed and lower income families, and that poverty levels are low.
The Tribunal considers that the capacity to earn more in Australian than he can in Taiwan may be a strong motivating factor for the applicant wishing to remain in Australia. Noting the country information cited above, however, the Tribunal finds there is nothing to indicate or suggest that the applicant might suffer severe economic hardship and/or be prevented from or be unable to obtain any employment or accommodation on his return to Taiwan. The Tribunal finds that there is nothing to indicate or suggest there is a real chance the applicant would suffer significant economic hardship that threatens his capacity to subsist; and/or would be denied access to basic services, where the denial threatens his capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s.5J(5)(d)-(f) of the Act), for one or more of the reasons mentioned at s.5J(1)(a) of the Act, should he return to Taiwan.
Refugee criterion

Given the Tribunal’s findings above, the Tribunal considers there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm from any person, group, agency or organisation for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, should he return to Taiwan in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Taiwan, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[11]
[11] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Taiwan, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A), from any individual, group, agency or organisation.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
In reaching this conclusion, the Tribunal finds that any economic hardship the applicant might experience if removed to Taiwan, including feelings of emotional distress and/or humiliation due to his economic circumstances, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing him to suffer significant harm.
Member of the same family unit
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.
Paul Windsor
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.
…

[2020] AATA 3531

19 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction