2010309 (Refugee)

[2022] AATA 1444

2010309 (Refugee) [2022] AATA 1444 (29 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010309

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Jason Pennell

DATE:29 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 March 2022 at 8.49am

CATCHWORDS
REFUGEE – protection visa – Taiwan – political opinion – supporter of the Nationalist Party – family dispute – physical assault – financial abuse – state protection – delay in applying for protection – return visits to Taiwan – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of the Republic of China (Taiwan), applied for the visa on 4 July 2019. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.

3. The applicant appeared before the Tribunal on 18 March 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The hearing was assisted by an interpreter in the Mandarin and English languages.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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.

APPLICANTS CLAIMS AND EVIDENCE

Applicant’s Identity

1. The applicant stated in his application for a protection visa that he was born on [date] in Changhua, Taiwan.[1] The applicant has provided a copy of the biodata page of his Taiwanese passport, [number], to the department[2]. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity.

   [1] Protection visa application form, department file [number], Doc ID no: 7394797

   [2] Applicant’s passport, department file [number], Doc ID no: 7394798

2. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that he is a citizen of Taiwan and as such his protection claim will be assessed against Taiwan as the country of reference and ‘receiving country’ respectively.

Applicant’s Migration History

1. The applicant arrived in Australia [in] July 2017 on a working holiday (TZ-417) visa and departed [in] November 2017, returning to Australia shortly after [in] November 2017. He was granted a subsequent working holiday visa onshore on 30 October 2018 and travelled outside of Australia on this visa on one occasion between [date] February 2019 and [date] February 2019. The applicant applied for protection on 4 July 2019 before his working holiday visa expired [in] July 2019 and was granted the associated Bridging Visa A on 9 July 2019[3]. Prior to arriving in Australia, the applicant had not travelled outside of Taiwan.

   [3] Department Movement Details, Tribunal file 2010309, Doc ID no: 9168754

Claims for protection and supporting documentation

1. The applicant first submitted claims for protection when he applied to the department for protection on 4 July 2019[4]. The applicant’s claims are as follows:

   Provide reasons why this applicant left that country or those countries:

   ‘BEFORE THIS IM USING WORKING HOLIDAYS VISA. MY WORKING VISA ALMOST FINISH SO I WANT TO CHANGE TO THIS VISA BECAUSE I WANT TO STAY PERMANANT IN THIS COUNTRY. I LEAVE MY COUNTRY BECAUSE I HAVE PROBLEM WITH MY FAMILY. SO, MY DECISION IS TO STAY HERE FOREVER BECAUSE I HAVE A GOOD JOB AND LIFE HERE HAPPILY WITHOUT ANY PROBLEM.’

   [4] Protection visa application form, department file [number], Doc ID no: 7394797

   Did this applicant experience harm in that country or those countries?

   ‘No’

   Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

   ‘No. ‘BECAUSE I WANT TO FREE FROM MY FAMILY’

   Explain what the applicant thinks will happen to them if they return to that country or those countries:

   ‘IM NOT HAPPY’

   Does this applicant think they will be harmed or mistreated if they return to that country or countries?

   ‘No’

   Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

   ‘No. BECAUSE IT IS FAMILY PROBLEM’

   Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

   ‘Yes. BECAUSE THEY CAN USING MODERN TECHNOLOGY.’

2. The delegate summarised the applicant’s claims as[5]:

   ·     He left Taiwan as he has a problem with his family.

   ·     He wants to remain in Australia so he can be free from his family.

   ·     The authorities in Taiwan are unable to provide him with adequate assistance as his issue is a family matter.

   ·     He cannot relocate to other areas within Taiwan as his family will be able to use technology to find him.

   ·     If he returns to Taiwan he will not be happy.

Applicant’s Evidence.

[5] Department decision record, Tribunal file 2010309, Doc ID no: 7381921

1. The applicant evidence was that he was born on [date] in Changhua, Taiwan. He claims that he can speak, read and write in Mandarin and English. In addition, he claims that he is of Chinese ethnicity and a Buddhist in religion[6].

   [6] Ibid

2. The applicant’s evidence was that his parents continue to live in Taiwan. His father owns and operates a [business], and his mother is engaged in home duties. The applicant also stated that he has [siblings] whom live in Taiwan. The applicant indicated in his application that he does not maintain contact with his relatives outside of Australia and that he does not have any personal contacts within Australia. The applicant is not married and has no other family in Australia.[7]

   [7] Protection visa application form, department file [number], Doc ID no: 7394797

3. In his application for a protection visa the applicant claimed that he attended [a named] Primary School and [a named] High School [between specified years].[8]  However, the applicant’s evidence to the Tribunal was that he attended school in Changhua, Taiwan. He stated that he attended primary school at [differently named] Primary School and High school at [another] School. The applicant was not able to say what year he completed school but indicated that it was either [year] or [year]. When questioned about the fact that his evidence to the Tribunal as to where he went to school was different to the information in his application, the applicant advised that his application had been completed by another person. 

   [8] Ibid

4. Prior to traveling to Australia, the applicant claimed that he was employed as [an Occupation 1] between January 2007 and December 2016 at [a named business] in Taiwan. Nevertheless, his evidence to the Tribunal was that from around 2010 to 2017 he worked as a [related role] in various [businesses] in Taiwan. The applicant’s evidence to the Tribunal was that in Australia between January 2017 and July 2019 he worked part-time.

5. The applicant claims that he will be seriously or significantly harmed if he is returned to Taiwan because of his political opinion. He claims that he is a supporter of the Nationalist Party while his family all support the Democratic Progressive Party (DPP). He claimed that his family supported Taiwan being independent and separate from China. The applicant claims that his family had hoped they could change his mind in supporting the Nationalist Party. The applicant claims that because of his political opinion he was verbally abused by his family. He also claims that he was pushed and hit by family members. In addition, the applicant stated that because of his political opinion he was hit with chairs and chains by family members. The applicant’s evidence was that he was assaulted by family members every two to three weeks upon which he would go and stay at a friend’s house. Finally, the applicant claimed that his family are managing his bank account and withholding funds from him. He claimed that he had little money and had to rely on friends for transport.

6. The applicant evidence was that he did not hold an official position within Nationalist Party, but that he supported the party financially, he attended meetings and was involved in election activities during local elections in 2012, 2014 and 2016. His evidence was that his involvement included bribing villagers to vote for the party. The applicant accepted that he was not harmed by the authorities while he was in Taiwan. In addition, the applicant did not provide the Tribunal with any evidence of his involvement in the Nationalist party as claimed.

7. Finally, the applicant claimed that his father, due to having been a gangster, had close ties to gangsters in Taiwan. As a result, he was not able to relocate to another part of the country and the police would not be able to protect him.

8. The applicant has not submitted any supporting evidence to the Tribunal in support of his claims.

Applicant’s delay

1. It is legitimate for the Tribunal to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution.[9] A delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[10] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[11] 

   [9]    Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J.

   [10] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.

   [11] Subramaniam v MIMA (1998) VG310 of 1997.

2. In this case the applicant arrived in Australia on [in] July 2017 on a working holiday visa and did not apply for a protection visa until on 4 July 2019,[12] a delay of approximately two years. During this time, the applicant departed Australia and returned to Taiwan from [date] November 2017 to [date] November 2017 and from [date] February 2019 to [date] February 2019.[13] In addition he was granted a further working holiday visa on 30 October 2018.[14]

   [12] Protection visa application form, department file [number], Doc ID no: 7394797

   [13]  Department Movement Records Tribunal file 2010309, Doc ID no: 9168754

   [14]  Department Movement Records, Tribunal file 2010309, Doc ID no: 9168754

3. The Tribunal notes that the applicant’s claim for protection relate to matters that occurred prior to his arrival in Australia. Nevertheless, his evidence was that he travelled to Australia with a friend for a working holiday. He claims that he did not make any application for a protection visa earlier because he was not aware, he could make such an application. In circumstances where the applicant has applied for two working visa’s and returned to Taiwan on two occasions the tribunal does not accept that he was not aware he could make a protection application. The Tribunal would have expected that, if the applicant had a genuine fear of persecution upon his return to Taiwan, he would have made an application for protection as soon as possible after his arrival in Australia. Instead, the applicant remained in Australia for a period of approximately two years prior to making his protection visa application. In that time, he obtained a further working holiday permit and returned to Taiwan on two occasions.  In circumstances where the applicant has had contact with the department for the purposes of obtaining a further working permit, the Tribunal has reservations about the applicant’s credibility in relation to his claims for protection. It appears that the applicant’s main purpose for coming to Australia was for work.  If the applicant had feared being seriously or significantly harmed upon his return to Australia the Tribunal would have expected him to have made an application for protection upon his arrival in Australia.  

4. Therefore, in light of the applicant’s migration history and his delay in making his application for a protection visa, the Tribunal has significant concerns about the applicant’s evidence concerning his fear of seriously or significantly harmed if he is returned to Taiwan.  As such, given the applicant’s excessive delay in making a valid protection visa application from the date of his arrival in Australia, the Tribunal has placed little weight on the applicant’s evidence in relation to his claims.

COUNTRY INFORMATION

1. There is no country information report about Taiwan prepared by the Department of Foreign Affairs and Trade (DFAT) for protection status determination purposes. The Tribunal has therefore considered other various country of origin information sources including the National documentation packages prepared by the Immigration and Refugee Board of Canada (IRBC) in relation to Taiwan. In addition, the Tribunal has considered the DFAT Country Brief in relation to Australia-Taiwan Relationship as detailed in Annexure ‘A’ to this decision.[15]  

   [15]  Department of Foreign Affairs and Trade Website ‘Australia-Taiwan Relationship’; OF CLAIMS AND EVIDENCE

   1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Credibility

   1. When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

   2. The mere fact that a person claims fear of persecution for a 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 him or her. 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 enough 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.[16] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[17]

      [16] Section 5AAA, the Act.

      [17] MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70].

   3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[18] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

      [18] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at p. 482.

   1. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[19] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

      [19] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

   2. In this case, the applicant’s evidence in relation to his claim was generally illogical and lacking in credibility. His evidence in relation to each claim was vague and lacking in any detail. The Tribunal specifically referred the applicant to his written claims in his application for a protection visa. The applicant’s evidence was that another person had completed the application on his behalf and that he was not aware of the claims made in the application. The applicant did not provide any evidence in support of his written claims.   

   Accepted facts

   1. Based on the applicant’s evidence, the Tribunal finds and accepts that the applicant:

      (a)was born on [date] in Changhua, Taiwan.

      (b)can speak, read and write in Mandarin and English.

      (c)he is Chinese ethnicity and a Buddhist in religion.[20]

      (d)parents continue to live in Taiwan.

      (e)has [siblings] whom live in Taiwan.

      (f)is not married and has no other family in Australia.[21]

      (g)was educated in Taiwan and completed high school in or about [year].

   Applicant’s claims as a refugee

   Applicant’s claim within s 5J(1) of the Act

   [20] Ibid

   [21]  Protection visa application form, department file [number], Doc ID no: 7394797

   1. The applicant’s claims to have a well-founded fear of persecution within the scope s 5J(1) of the Act by reason of his political opinion. He claims that he is a supporter of the Nationalist Party he has a well-founded fear of persecution by his family as supporters of the DPP if he is returned to Taiwan.

   2. As to an applicant’s political opinion it is not necessary that an applicant hold a particular political opinion. It is enough if that opinion is imputed upon the applicant by the persecutor.[22] In this case the applicant claimed that he was a supporter of the Nationalist Party. The applicant only provided the Tribunal with limited details of his support for the Nationalist Party and of his political opinions. Nevertheless, it was open for the applicant to make a claim relating to his political opinion as claimed. As such, the Tribunal accepts that his claim of having a well-founded fear of persecution because of his political opinion falls within s 5J(1)(a) of the Act.

   Applicant’s well-founded fear

   [22]   MIEA v Guo (1997) 191 CLR 559 at [571] referring to Chan v MIEA (1989) 169 CLR 379 at [416] per Gaudron J and at [433] per McHugh J.

   1. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[23]

      [23] Chan Yee Kin v MIEA (1989) 169 CLR 379.

   2. In this case, the applicant claims that he will be persecuted if returned to Taiwan by his family because of his support for the Nationalist Party. For the reasons expressed below, the Tribunal does not accept that there is a real chance the applicant will be seriously harmed if he is returned to Taiwan.  Accordingly, the Tribunal does not accept that the applicant holds any fear of returning to Taiwan on either a subjective or an objective basis.

   The Applicant’s claim 

   1. The applicant in his written application states that he is seeking protection in Australia because he has a problem with his family. The applicant did not specifically state the what the ‘problem’ was with his family as claimed. Nevertheless, his evidence to the Tribunal was that he feared that he would be seriously harmed by members of his family if he returned to Taiwan because of his support for the Nationalist Party. His evidence was that his family were supporters of the DPP and supported Taiwan being independent and separate from the People's Republic of China (China). He claimed that he was a supporter of the nationalist party and as such he feared being seriously harmed if he was returned to Taiwan.

   2. The applicant’s evidence in relation to his family’s support for the DDP was vague and lacking in any detail. There was no evidence that they were active members of the DPP or that they held positions within the party. The applicant’s evidence was that his father owned and operated a [business] in a local market. In the absence of any evidence to the contrary, it is difficult to see how he would have had the time or inclination to be actively involved in political activities.  Nevertheless, the applicant’s evidence to the Tribunal was his family simply supported the DPP as they supported Taiwan being independent and separate from China. As such while the Tribunal accepts that the applicant’s family were supporters of the DPP, it does not accept that they were actively involved in the party as active members.

   3. The country information[24] reports that the DPP has embraced the idea of Taiwan being separate and having an independent identity from China.[25]  The DPP was the first opposition party in Taiwan.[26] It was founded in September 1986 to challenge the rule of the Kuomintang (KMT). It supports self-determination for ethnic Taiwanese, democratic freedoms, the establishment of economic ties with China, and establishment of a multiparty system.[27] It is reported that the DPP advocates for promoting the innovative economy, safeguarding human rights, encouraging democracy, protecting sovereignty and sustaining a fair and inclusive society.[28] Initially, DPP’s advocacy of political liberalisation led to arrest and imprisonment of many of its leading figures. In 1986 it won about 10 percent of the seats in the Taiwan’s Legislative Yuan, and in December 1989 (the first election at which opposition groups were able to contest seats as political parties) the DPP won a fifth of the seats.[29]

      [24]  Britannica, democratic Progressive party, Political Party Taiwan updated by Kenneth Pletcher; Aljazeera, ‘Why Taiwan’s Kuomintang on the ropes?’ By Erin Hale dated 12 November 2020 South China Morning Post; Britannica, Democratic Progressive party, Political Party Taiwan updated by Kenneth Pletcher; Democratic Progressive Party, Our History, DPP governance, quality assurance; Britannica, Democratic Progressive party, Political Party Taiwan updated by Kenneth Pletcher; >

      In the 1990’s the DPP had captured more than 30 percent of the legislature’s seats, and in 2000 its leader, Chen Shui-bian, was elected president. In December 2001 the party won more than one-third of the seats in the Legislative Yuan, replacing the Nationalist Party (which had ruled continuously since the founding of Taiwan) as the largest party in the legislature. Chen was narrowly re-elected in 2004; in parliamentary elections that year the DPP remained the largest party in the legislature but suffered a defeat to the Nationalist in January 2008 parliamentary elections.[30]  

      [30]   ibid

   4. On 16 January 2016,[31] the DPP gained the presidential seat, with the election of Tsai Ing-wen. In addition, the DPP won 68 seats out of the 113-seat legislature, giving the party the majority in the Legislative Yuan for the first time in its history.[32] On 11 January 2020 President Tsai was re-elected as president of Taiwan and the DPP retained its legislative majority, winning 61 seats.[33] This was the fourth presidential election victory for the DPP, following victories in 2000, 2004 and 2016.[34]

      [31]  The Taiwan News, Elections: DPP to control Legislative Yuan dated 17 January 2016 by Alison Hsiao ibid

      [33]  Democratic Progressive Party, Our History, DPP governance, quality assurance; ibid

   5. The applicant’s evidence of his support for the Nationalist Party was vague and lacking in any detail. His evidence was that he did not hold any official position in the party but supported it financially, attended meetings and being involved in election activities during local elections in 2012, 2014 and 2016. The applicant failed to provide any independent evidence of his involvement in the Nationalist Party as claimed. For example, he did not provide any bank statement or receipt evidencing his financial support of the party. In the past, it may have been difficult for an applicant to obtain such documentation for the Tribunal. However, in circumstances where the applicant appeared before the Tribunal via MS Teams it would have expected that some documentary evidence of his involvement with the party could have been obtained and provided to the Tribunal electronically.

   6. In addition, the applicant’s evidence in relation to his election activities and attendance at meetings was vague and lacked any detail. The applicant did not provide any evidence as to what election activities he participated in or when and where he attended party meetings as claimed. For example, the applicant gave no detail of the timing of the meetings, where the meetings were conducted, the frequency of the meetings and how many people attended the meetings. The applicant’s claim that he was involved in bribing villagers on behalf of the party lacked credibility as he was not able to provide any details in relation to such activities. For example, he did not state who instructed him, the form or amount of the bribes given to villagers, the names of the villages he visited and how often he visited each village. Accordingly, the Tribunal does not accept the applicant’s evidence that he engaged in bribing local villagers on behalf of the Nationalist Party as claimed. While the Tribunal accepts, he may have been a supporter of the Nationalist Party, based on the applicant’s own evidence the Tribunal does not accept that the was a member of the Party. In addition, based on the applicant’s evidence, it does not accept he was involved in attending party meetings or engaged in political activities on behalf of the Nationalist Party as claimed. Accordingly, the Tribunal does no accept that he was actively involved with the Nationalist Party as claimed. As such the Tribunal finds that there is no real chance, he will be seriously harmed if he is returned to Taiwan by members of his family as a member of the Nationalist Party as claimed.

   7. The country information[35] reports  that the Nationalist Party (also known as Kuo-min Tang (KMT) political party that governed all or part of mainland China from 1928 to 1949 and subsequently ruled Taiwan under Chiang Kai-shek and his successors until 2001. The Nationalist Party was originally a revolutionary league working for the overthrow of the Chinese monarchy. It became a political party in 1912, the first year of the Chinese republic.[36] 

      [35]  Britannica, Nationalist Party, Chinese political party, updated by Adam Augustyn   ibid

   8. Following the victory of the Chinese communists on mainland China in 1949–50, a stream of Nationalist troops, government officials, and other refugees led by Chiang Kai-shek, poured into Taiwan. While a branch of the Nationalist Party opposed to Chiang’s policies aligned itself with the CCP, the Nationalists constituted the only real political force in Taiwan, holding virtually all legislative, executive, and judicial posts until the first legal opposition to the Nationalist Party came in 1989 by the DPP.[37]

      [37]   ibid

   9. The Nationalists remained in power until 2000 when the DPP’s presidential candidate, Chen Shui-bian, defeated the Nationalists’ candidate, Lien Chan. In 2004 the Nationalists regained control of the legislature, and in 2008 the party captured nearly three-fourths of the legislative seats. To resolve Taiwan’s long-standing differences with China, the party has endorsed the policy of the “Three Nots”: not unification, not independence, and not military confrontation.[38]

      [38]   ibid

   10. It is reported[39] that recently the Nationalist party has struggled to win the hearts and minds of the Taiwanese people. At the last election only few people under the age of 40 voted for the Nationalist party. [40]  However, it remains popular amount the older generations, particularly those who immigrated to Taiwan after 1949. The reason for the reduced support for the Nationalist Party is the rising support for Taiwan independence from China, and the rejections of the idea of ‘One China.’ In contrast to the Nationalist Party the DPP has embraced the separation of Taiwan for China.[41] 

       [39]  Aljazeera, ‘Why Taiwan’s Kuomintang on the ropes?’ By Erin Hale dated 12 November 2020   ibid

       [41]   ibid

   11. The country information[42] reports that on 18 March 2014, a group of Taiwanese students known as the Sunflower Movement stormed the national legislature to resist a free trade deal with China. Despite thousands of supporters camped on the streets surrounding the legislature, the government refused to accept demands from the protesters to postpone the free trade agreement. Ultimately the movement lost steam and the student leaders opted for a voluntary withdrawal.[43]

       [42] THE CARNEGIE GOUP, ‘The Road to Mainstream Politics: How Taiwan’s Sunflower Movement Activists Became Politicians’ by dated 24 October 2019 Ming-Sho Ho.   ibid

2. The Sunflower Movement represented the culmination of protests and activism that had gathered momentum since the return of the conservative Kuomintang (KMT) in 2008.[44] It became a political trigger point because of the push for trade liberalisation with China was perceived to benefit big corporations at the expense of individuals. Many feared that closer economic integration with China would compromise Taiwan’s political autonomy and self-governing status.[45] As part of the movement political campaigns also involved environmental concerns, labour rights, media reform, forcible eviction.[46] Younger Taiwanese also protested in relation to the economic circumstances involving wage stagnation and informal employment.  As a result of the Sunflower movement the Nationalist Party suffered back-to-back electoral defeats with the DPP winning the the presidency and the legislative majority in a landslide in January 2016.[47] There was no evidence of the applicant or any member of his family having been involved in the Sunflower movement or actively opposed to the movement.

   [44]   ibid

   [45]   ibid

   [46]   ibid

   [47]  ibid

3. The applicant claims that his family tried to change his mind in supporting the Nationalist Party. He claimed that he was verbally abused and assaulted by his family every two to three weeks upon which he would stay at a friend’s house. He claimed that he was verbally abused, pushed, and hit with chairs and chains by members of his family. The applicant’s evidence in relation to the harm he claimed to have suffered was vague and lacking in detail. For example, he did not identify what members of his family hit and abused him. In addition, he did not provide any evidence of injury he suffered because of being assaulted as claimed.  As such the Tribunal found the applicant’s evidence in relation to the harm, he claimed to suffer lack any credibility. As such, the Tribunal does not accept that he suffered any harm that could have been considered as serious harm as defined by s.5J(5) of the Act.  As such the Tribunal finds that there is no real chance that the applicant will be seriously harmed by members of his family as claimed if he is returned to Taiwan.

4. In any event, it was the applicant’s evidence that he was able to avoid any harm by removing himself from the family home and simply going to a friend’s home. There was no evidence to suggest that the applicant was harmed anywhere other than at his family home when engaging with his family. Therefore, from the applicant’s own evidence it appears that there is only a real chance he will suffer serious harm while at his family home.  The applicant is a mature adult and capable of finding employment to be able to support himself. It is therefore reasonable to expect that the applicant would not return to his family, but rather find accommodation for himself separate for his family. That is, he would be safe anywhere else in Taiwan save and except for his family home. As such, the Tribunal finds that there is no real chance that the applicant will be seriously harmed if he is returned to Taiwan.

5. Finally, the applicant claimed that his family are managing his bank account and withholding funds from him. He claimed that he had little money and had to rely on friends for transport. The applicant’s evidence in relation to his family withholding funds from him was vague and lacking in any detail. He did not provide any evidence of his bank accounts and did not provide any evidence of his income and how much of was withheld by his family as claimed. In addition, the applicant did not provide any details by which his family were able to manage his bank accounts as claimed. In circumstances where the applicant claimed that he had made financial contributions to the Nationalist party, together with his lack of evidence, his claim that his family were withholding funds lacked credibility. As such the Tribunal does not accept the applicant evidence that his family are managing his bank account and withholding funds from him as claimed. As such it finds that there is no real chance the applicant will be seriously harmed because of his family managing his bank account and withholding funds form him as claimed. 

Access to state protection

1. If the Tribunal accepts that the applicant suffered harm by his family as claimed (which it specifically does not), then having considered the available country information the Tribunal finds that the applicant would be able to obtain effective protection to the extent that there would be no real chance that he would be seriously harmed in the event that he was returned to Taiwan.

2. The country information reports that the National Police Agency (NPA) is an agency under the Ministry of the Interior of Taiwan which is based Taipei City and oversees all police forces on a national level. The government appoints the head positions of city and county Police Departments in Taiwan creating a solid chain of command for all police personnel. The NPA has direct control over several specialized units which may be deployed to assist local forces, as well as the national highway patrol. Generally, most law enforcement and day-to-day policing duties are delegated to local police departments on a city and county level that answer to the NPA.

3. Recently, the Crime Research Centre of National Chung Cheng University announced the "2021 Annual Survey of Taiwan Citizen’s Satisfaction with Justice and Crime Prevention Policies". 82.5% of the respondents were satisfied with the police in maintaining public safety, and the satisfaction has been remaining over 80% in 3 consecutive years. Nearly 90% of the respondents felt safe and secure in their neighbourhood in 2 consecutive years. In addition, the satisfaction with the drug enforcement and the fraud prevention was over 60% respectively. The survey carried out by Chung Cheng University indicated that the efforts to maintain the social order and fight crimes by the police are highly praised and supported by the public.[48]

   [48]  National Police Agency, Ministry of the Interior, ‘Public Satisfaction with the Police is over 80% in 3 Consecutive Years Citizens Support Drug Enforcement, Fraud Prevention and Various Measures by the Police’ dated 25 Feb 2022; type="1">

4. Therefore, having considered the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that, if it did accept that the applicant was threatened by his family as claimed, effective protection measures are available in Taiwan by the State[49] and that the State is able and willing to provide such protection.[50] The applicant can access the available protection and the protection provided is durable.

   [49] s.5LA(1)(a) of the Act

   [50] S.5LA(1)(b) of the Act

5. From the available country information, the Tribunal finds that Taiwan has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system.[51]Therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as victim of his family as claimed or any related claim or any other reason.

   [51] S.5LA(2)

6. Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) regarding the claims by the applicant as a victim of a money lender or a loan shark.

7. Therefore, having considered the applicant’s claims both individually and cumulatively the Tribunal finds that the applicant does not have a well-founded fear of persecution if he returns to Taiwan and finds that the applicant does not satisfy s.36(2)(a).

Complimentary protection.

1. The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, 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'. The Tribunal has considered whether it has 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 the applicant will suffer significant harm of any kind.

2. For the reason detailed about the Tribunal has not accepted that applicant’s evidence that he was a member of the Nationalist Party as claimed. Accordingly, the Tribunal has found that here is no real chance that he would be seriously harmed if returned to Taiwan. Therefore, for the reasons expressed above in considering the applicant’s claim as a refugee the Tribunal finds that there is no real risk that he will be significantly harmed if he is returned to Taiwan.

3. In addition, for the reasons expressed above the Tribunal has not accepted that the harm claimed to have been suffered by the applicant from his family would be serious pursuant to s.5J(5) of the Act. Having considered ss.36(2A) of the Act, the Tribunal finds, for the reasons above, that the harm the applicant claims to have suffered does not amount to significant harm.  As such the Tribunal finds that there is no real risk that the applicant will be significantly harmed by his family if he is returned to Taiwan.

4. Having considered the country information and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s.36(2)(a), the Tribunal does not accept that the applicant will suffer significant harm by his family because of his political views as claimed. As such the Tribunal does not accept that the applicant has a real risk of significant harm as outlined in s.36(2A)(c) and (d) and finds that, there is no real risk the applicant will be significantly harmed by his family upon his return to Taiwan.

5. However, in circumstances where the Tribunal accepts he may be significantly harmed by his family as claimed (which the Tribunal specifically does not), and as a result there is a real risk of significant harm to the applicant then under s.36(2B) of the Act, there is no real risk of significant harm if the applicant can  ‘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’[52]. To satisfy s.36(2B)(b)[53], the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[54] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[55] However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection. That is, section 36(2B)(b) requires the Tribunal to be satisfied that the protection available would remove the real risk of significant harm.

   [52] s.36(2B)(b) of the Migration Act 1958

   [53] MIAC v MZYYL (2012) 207 FCR 211

   [54] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.

   [55] In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).

6. Having considered the country information and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s.36(2)(a), the Tribunal finds that the level of protection from state and other authorities available to the applicant, if removed from Australia to anywhere within the applicant’s country of reference, would remove the real risk of significant harm. That is, the Tribunal finds that the NPA will provide effective protection to the applicant from physical harm. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Taiwan, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Taiwan and does not satisfy s.36(2)(aa) in this regard.

7. In all the circumstances, the Tribunal finds that, pursuant to s.36(2)(aa) there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to their receiving country, that there is a real risk that they will suffer significant harm of any kind.

8. At no stage did the applicant advance any other reason, such as his race, nationality or religion, in his written or oral claims that he is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.

9. Having considered his claim and accepted circumstances, both individually and cumulatively, 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 he will suffer significant, including that he will be arbitrarily deprived of his life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s36(2)(aa).

Conclusions

1. 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 the Act for the reasons mentioned in s.5J(2). Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

2. 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).

3. There is no suggestion that the applicant satisfies s.36(2) based on 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

1. The Tribunal affirms the decision not to grant the applicant a protection visa

Jason Pennell
Senior Member

Annexure ‘A’

Political parties[56]

[56] Department of Foreign Affairs and Trade Website ‘Australia-Taiwan Relationship’; are two main political parties in Taiwan. The modern Kuomintang (KMT) evolved from the former military government Nationalist Party. The KMT’s support base is in northern Taiwan, where the Nationalist government and its supporters from the mainland established their new capital, Taipei. The KMT generally supports a conservative free-market agenda, although it maintains support for some state intervention in important sectors of the economy through a number of large state-owned enterprises established under its leadership. The KMT was in power most recently from 2008-2016 under Ma Ying-jeou, securing a number of cross-Strait agreements, including the overarching Economic Cooperation Framework Agreement (ECFA).

The pro-democracy movement of the 1970s and 80s gave rise to the Democratic Progressive Party (DPP). The DPP’s support base is in southern Taiwan, particularly among the “Taiwanese” communities established prior to the arrival of the “mainlanders” in 1949 some within the DPP support Taiwan’s de jure independence from China. The DPP held power from 2000 to 2008 under President Chen Shui-bian, whose leanings towards independence heightened tensions with China. The DPP’s broader policy agenda is generally socially progressive, focusing on issues such as income inequality, the environment, and economic and trade diversification.

Negotiation of a trade in services agreement with China proved controversial with many, particularly younger voters apprehensive that Taiwan was becoming too economically dependent on the mainland. In March 2014, students and NGOs led large street demonstrations, dubbed the Sunflower Movement, and occupied the chamber of the Legislative Yuan for 23 days. The social activism inspired by the Sunflower Movement led to the establishment of a number of new political parties, such as the New Power Party.

On 11 January 2020, Dr Tsai Ing-wen of the DPP was elected for a second consecutive four-year presidential term, securing over 57 per cent of the popular vote.

Cross-Strait relations and international recognition

Hostilities between the Nationalists (who fled to Taiwan) and the Communists (who remained on the mainland) never formally ended. As a result, relations between the two sides of the Taiwan Strait have never been established on an official basis. Nevertheless, strong economic connections across the Strait have gradually been forged, including through a range of agreements in recent decades. Taiwan business investment played an important role in China’s opening up, and direct transport and tourism links have been established.

Relations across the Strait are principally managed via semi-official agencies: Taiwan's Straits Exchange Foundation (SEF) and China's Association for Relations across the Taiwan Strait (ARATS). A meeting of both sides in 1992 took place on the understanding that each side could verbally state its opinion of “one China”; for Taiwan, this meant the Republic of China, and for China, this meant the People’s Republic of China. This understanding was later referred to as the ‘1992 Consensus’.

Cross-Strait relations have become more difficult since the elections in January 2016. Beijing has criticised Tsai Ing-wen for failing to endorse the ‘1992 Consensus’ and has suspended official and semi-official channels of communication.

For Taiwan, international recognition remains important. The United Nations and most countries – including Australia – recognise the PRC in Beijing as the sole legal government of China (as opposed to the ROC in Taipei). Currently fifteen states recognise Taiwan as the ROC (and thus do not have official relations with Beijing): Belize, Guatemala, Haiti, Holy See, Honduras, Marshall Islands, Nauru, Nicaragua, Palau, Paraguay, St Lucia, St Kitts and Nevis, St Vincent and the Grenadines, Swaziland and Tuvalu.

Economic overview

Until the mid-1960s, Taiwan's economy was dominated by agriculture, especially rice and sugar production. One of Asia's “Four Tigers”, the development of export-oriented manufacturing transformed Taiwan's economy into one defined by urban and industrial production. By the 1980s, Taiwan began relocating its low technology manufacturing offshore, especially to China. More recently, there has been a trend for some of Taiwan's more advanced high-tech industries to follow suit.

With a population of almost 24 million, Taiwan has the 21st largest economy in the world, with a gross domestic product (GDP) of US$1.3 trillion PPP. In 2020, it sits just outside the world’s top twenty economies – and is a member of the World Trade Organization (WTO) and Asia Pacific Economic Cooperation (APEC) – as Chinese Taipei. Taiwan is a trade-based economy with strengths in ICT manufacturing (particularly semi-conductors), petrochemical refining and plastics, metal refining and consumer products manufacturing. Services account for over 60 per cent of Taiwan’s GDP.

Agriculture receives government assistance including import protection and domestic support. Import protection involves high tariff rates, tariff-rate quotas and special safeguard measures. In 2018, Taiwan’s average tariff on agricultural products was 15.9 per cent, as defined by WTO. Domestic support in Taiwan includes price stabilisation measures, subsidised loans and inputs, and income support for senior farmers. Government intervention continues to focus on rice.

Taiwan is relatively open to foreign investment. Foreign Direct Investment (FDI) stock in Taiwan totalled US$100 billion in 2019. The largest investors in Taiwan are from China, the Netherlands, territories in the Caribbean and Japan. Taiwan has relatively few restrictions, although foreign businesses periodically raise concerns about red tape and the slow progress of deregulation in a number of sectors, including telecommunications and financial services. For the most part, foreign investment application and approval processes are straightforward. Taiwan ranked 15th out of 190 economies in the World Bank's Ease of Doing Business Index 2020.

Since the DPP came to power in 2016, Taiwan has sought to boost economic growth and diversification through its New Southbound Policy. The Policy aims to deepen ties with ASEAN and South Asian nations, as well as Australia and New Zealand, through strengthening economic and trade cooperation, and enhancing institutional, professional and academic interaction.

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.

1. 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.

2. 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.

3. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…