2010483 (Refugee)

2010483 (Refugee) [2023] AATA 4710 (7 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2010483
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Rosa Gagliardi
DATE:7 November 2023
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 November 2023 at 10:04am
CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from religious organisation – strict control and coercion – delay in applying for protection – applied after previous visas and refusal, tribunal review and court appeal, and return travel – vague claims and no supporting evidence – consent to decision without hearing – country information – freedom of religion and reasonably effective law enforcement and judicial system – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
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 10 February 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Taiwan applied for the visa on 23 June 2016. The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Taiwan there is a real risk he will suffer significant harm as defined in s.36(2)(aa) of the Act.
On 5 October 2023 the Tribunal wrote to the applicant by email indicating that his file was being prepared to be reviewed by a Member. The Tribunal wrote to ask that to assist the Tribunal Member conduct the review, the applicant should complete a pre-hearing information form via a particular link, returning it within 7 days of receiving the email.
The pre-hearing information form included a section stating, “In your application for a protection visa you would have provided reasons or made claims as to why you need Australia to grant you protection. Do you want to give more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country?”. The applicant did not provide any further details. He was also advised that if he wanted to submit any further evidence to the Tribunal it was to be provided as soon as possible.
On 10 October 2023, the applicant instead responded to the Tribunal’s email by stating, “I do not want to have a hearing and I consent to the Tribunal making a decision on the papers without inviting me to a hearing for my case”.
No further supporting evidence has been submitted to the Tribunal for its consideration.
Based on the applicant’s instructions and given that the applicant has provided the Tribunal with a copy of the Departmental decision for the purposes of the review, the Tribunal considers that it is reasonable to proceed to decide the matter on the material 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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant was returned to Taiwan now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and/or whether he would suffer serious harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
The applicant instead of filling in the Form 866C giving specific details of his claimed persecution and why he fears returning to Taiwan relied at the time of the Departmental decision on a statement validly made.
The undated statement reads:
I came from Taiwan and I was once a member of the religious organization Tenrikyo. However, I was strictly controlled by that organization and my personal liberty was limited by it. Couldn’t even choose my own spouse as I pleased, and I was obliged to make greater and greater contributions to that organization, or else I would be discriminated against by other, punished or confined by the organization. In fact, I had become a slave of that religion. One of friends of mine tried to quite (sic) the organization but was confined by them. What was worse, he all but lost his life.
Actually, I had no right to quit. If I do, my family members would be involved, as our organization had established a guarantee mechanism between us family members. If ever I’d like to quite(sic) the organization, not only my family members would be involved but my close friends would alienate me. The public opinion, religious disciplines and the collective nonchalance would combine to make me a deserted child of the society.
My difficulty lies in the fact that I can go nowhere to air my grievances in such an intricate society on such a tiny island. The government doesn’t bother to take care of such trifling things. The pressure the society has placed on me is too great to stand up to personally. To defend my human rights and freedom, I can only flee to Australia to file my application for protection, in order that I can be relieved of the religious oppression on me and live a free life.
No further material supporting the applicant’s claims was advanced to the Department.
The applicant claims to fear persecution on the basis of his anti-religious views which entail wanting to leave the Tenrikyo religion but feeling unable to because of societal and familial opprobrium and has concerns his family will be targeted in retribution by Tenrikyo or possibly others. He fears persecution from the members of the Tenrikyo religion if he leaves. As such, he is claiming to fear persecution on the basis of his religious (anti) views perpetrated by Tenrikyo, his family, and others but has not indicated that he will be persecuted by State Taiwanese actors.
To have a well-founded fear of persecution an applicant must have a subjective as well as objective fear of persecution. The Tribunal is not satisfied that the applicant’s claims to have a well-founded fear on return to Taiwan on account of him leaving the Tenrikyo religion can be either subjectively or objectively accepted.
In the first instance, in terms of the urgency of the applicant’s claims the applicant’s migration history in Australia belies a distinct lack of compelling impulse to bring to the Department’s attention his fears about returning to Taiwan. From the summary of his interactions with the Department and his continued presence in Australia, including pursuing litigation not related to his protection claims, the Tribunal rejects that the applicant’s fears are well-founded or that there is a real chance that he will suffer serious harm as set out (but not limited to) under the Act.
The applicant’s interactions with the Department, AAT and at the judicial level belie a sense of compelling or immediate need to put forward his protection claims. This delay weakens arguments that he fears for his well-being or his safety. The following migration pattern the applicant has had in Australia would indicate that the applicant only lodged the protection application when his avenues for remaining in Australia had considerably diminished.
·[In] March 2013 the applicant arrived in Australia on a TZ-417 Working Holiday visa.
·On 6 January 2014 the applicant applied for a TZ-417 Working Holiday (Extension)(Onshore) visa.
·He was granted a TZ-417 Working Holiday (Extension)(Onshore) 417 visa on 17 February 2014.
·Departed Australia [in] October 2014.
·[In] November 2014 the applicant arrived in Australia on a TZ-417 Working Holiday (Extension)(Onshore) visa.
·On 16 February 2015 the applicant then applied for a TU-572 Vocational Educational and Training Sector visa (dependent applicant).
·On 2 April 2015 the Department refused an application for a TU-572 Vocational Educational and Training Sector visa.
·On 15 October 2015 the AAT affirmed the Departmental refusal of the TU-572 Vocational Educational and Training Sector visa application.
·The applicant applied for judicial review of the AAT’s affirm decision and on
3 June 2016 the Federal Court dismissed (Ex Tempore) the application for review.
·The applicant applied for the Protection visa under review on 23 June 2016.
At a hearing had the applicant attended the Tribunal would have queried why he was not able to put his claims immediately to the Department if they had a real sense of urgency, instead of applying for various other visas which were temporary and would not have offered him an enduring solution to his claims that he cannot return to Taiwan. While this matter is not of itself determinative of the review, it does leave questions about the applicant waiting to lodge such a serious matter as a protection visa only until he had failed in relation to the TU-572 Vocational Educational and Training Sector visa at judicial review.
At a hearing the Tribunal would have explored with the applicant why it was he was able to negotiate Australia’s migration system to remain in the country for as long as he did, and pursue his avenues of review/appeal and yet had not considered lodging a protection application, if his fears were genuine, well before he did so.
The Tribunal also questions why the applicant did not lodge a protection visa application prior to departing for Taiwan [in] October 2014 whilst still on his Working Holiday visa. At a hearing the Tribunal would have asked the applicant whether on departure from Australia he was known by his fellow practitioners, family and friends in Taiwan to have wanted to leave or had already left the religion. It seems incongruous that the applicant would willingly return to a country he has claimed he feared persecution from, and which he wishes to flee, if indeed he was still a member of Tenrikyo at the time. This aspect of the applicant’s claims is unknown.
Other difficulties the Tribunal has in accepting the applicant’s claims rest with the general and vague nature of his claims as presented to the Department in writing which the Tribunal needed to have the applicant expand on at hearing to test the applicant’s credibility.
In his brief statement the applicant advances that he “was once a member of the religious organization Tenrikyo”. At hearing the Tribunal would have asked the applicant to pinpoint exactly when he was introduced to the religion and when precisely he chose to disassociate himself from Tenrikyo. The Tribunal has many other questions such as at what age the applicant started to question Tenrikyo and what, if any, event precisely led him to reject the religion. The Tribunal would have also liked to ask the applicant when he had the realisation that he had become “a slave to the religion”. Other unknowns in the applicant’s narrative which could have been fleshed out at a hearing would have involved the applicant setting out the basic tenets of the Tenrikyo belief system, and how he might have practised the religion on a day-to-day basis.
The Tribunal would have also encouraged the applicant at a hearing to discuss why his family members had chosen to belong to the religion and how far back in history his family had followed Tenrikyo. To test the applicant’s claims that he was ever a member of Tenrikyo, the Tribunal would have liked the applicant to discuss at a hearing the extent of his family’s involvement in the religion and any official role they might have held in the structure of the religious organisation. Other queries the Tribunal would have raised at hearing include whether the congregation is led by a pastor-like figure, how the religion came about and who the enforcers of the religion’s claimed rules were.
The applicant has stated that the religion, Tenrikyo, curtailed his liberty by not permitting him to choose his own spouse. The Tribunal would have asked whether he meant that Tenrikyo, for example, did not permit inter-faith marriage or whether the leaders in the religion would choose who he married regardless of their faith. The Tribunal would have expected that had Tenrikyo placed such human rights restrictions on its followers that the applicant could submit publicly available information which gave examples of how the religion curtailed the freedoms of its congregation.
The applicant has also referred in his statement to a “friend” who tried to quit the organization but was confined by “them”. The information about his friend who he claims underwent a significant event (confinement) by the religion is general and undefined. The Tribunal would have liked to ask the applicant to name his friend and to provide other characteristics about him that would lead the Tribunal to accept that such a person existed. Importantly, the Tribunal would have asked questions at hearing about how long the confinement was; where his friend was confined and what might have happened to this friend during confinement.
The Tribunal would have liked to question the applicant about whether in Taiwan he was formally required to resign from the organisation either privately or publicly and when he might have taken any such formal step. Given the paucity of information before it, together with the unspecified nature of the applicant’s statement, the Tribunal does not accept that the applicant ever was, or is, a member of the Tenrikyo religion in Taiwan and consequently that he would be persecuted or would suffer serious harm on account of his claimed anti-Tenrikyo beliefs.
The applicant claims that his friend “all but lost his life” but specific detail about such a crucial event has not been provided. How did the applicant’s friend almost lose his life and what action did his confiners take to bring on such an extreme result? These are all questions that remain unanswered and for which the applicant has not provided detail.
The information the applicant has provided about Tenrikyo’s tactics in exhorting large amounts of money from its members is also vague and general. At a hearing the Tribunal would have asked the applicant to provide specific information about how the religion forced him to pay large amounts of money and if he could provide evidence that he or his family had made such payments to the religious organisation. The Tribunal would have also attempted to gauge with the applicant whether his family and he had been specifically threatened or targeted to pay these large sums at any time. Such concrete details, together with other persuasive evidence, would have assisted the Tribunal to accept that the applicant has a well-founded fear of persecution on return to Taiwan now or in the reasonably foreseeable future in respect of his anti-Tenrikyo views.
Together with other questions the Tribunal has about the applicant’s claims, the Tribunal does not accept that the applicant has a well-founded fear of persecution on return to Taiwan on account of his religious attitude, being wanting to leave the religion, Tenrikyo, because his personal liberty would be restricted and controlled by the organisation or any other actors. The Tribunal also rejects that the applicant became a slave to the religion and was coerced into making strong contributions otherwise he would be punished, discriminated against by others or that he would be confined by the religious organisation.
At a hearing the Tribunal would have liked to learn about the claimed guarantee system to which the applicant refers briefly in his statement that allegedly bound his family members so they are not able to leave the religion as claimed.
As it is, the information before the Tribunal is general and vague and the Tribunal does not accept that the applicant or any family members or associates were ever members of the Tenrikyo religion. If follows that the Tribunal rejects that the applicant or family or others will be persecuted or will suffer serious harm on return to Taiwan on the basis of the applicant’s anti-Tenrikyo beliefs or that he and his family have suffered such serious harm in the past due to the applicant’s religious attitudes.

Even if the Tribunal is wrong about the applicant not having made out a credible case, in surveying the country information (that the applicant would have had an opportunity to review as set out in the Departmental decision), the Tribunal does not accept that the applicant will be persecuted or that he will suffer serious harm on account of his views on Tenrikyo by the religious organisation itself, by family or other members of society or that his family would be targeted by Tenrikyo or by any state or non-state actors.
At a hearing the Tribunal would have asked the applicant to engage with the country information and to tell the Tribunal why he thought he would not be safe in Taiwan when indications are that according to the 2015 Yearbook of the Republic of China, “The people of Taiwan enjoy complete freedom of religion, as affirmed by numerous observers and demonstrated by the nation’s rich spectrum of religious traditions around the world.” [1] Further:
These consist of principal world faiths, religious organizations of a specific size, or religions that have been established for over 50 years…While religious organizations are not required to register with the government, many do so to enjoy tax-exempt status.
…
There were no reports of significant societal actions affecting religious freedom. [2]
[1] OGD95BE926815:”2015 Report on International Religious Freedom-Taiwan”, US Department of State, 10 August 2016.
[2] Ibid.
Moreover, as set out in the Departmental decision:
The constitution provides for freedom of religious belief…There were no significant societal actions affecting religious freedom.
….
The constitution provides for the free exercise and equal treatment under the law of all religions which ‘shall not be restricted by law’ except as necessary for protecting the freedoms of others, imminent danger, social order, or public welfare…[3]
[3] OGD95BE926815: “2015 Report on International Religious Freedom – Taiwan” US Department of State, 10 August 2016.
The Tribunal acknowledges that this country information is somewhat outdated now but the Tribunal at a hearing would have asked the applicant whether there was current counter country information to show there had been significant changes since the findings of the “2015 Report on International Religious Freedom – Taiwan” indicating that belief or indeed non-belief in certain religions, would attract adverse attention from the authorities or others.
From the country information it can be extrapolated, further, that members of the Tenrikyo religion can practise or not as they see fit. Furthermore, the applicant has not made a case via verifiable information that the religion of Tenrikyo is coercive, punitive, and is able to operate outside the law. The applicant has provided limited information about the organisation having a persecutory element about it and nor has he provided examples, by way of newspaper articles, for example, that former members have faced serious harm because they left the religion, either at the hands of the religious members of Tenrikyo itself, or by others.
Regarding the applicant’s claims that he will be dis-endorsed by society at large, the applicant lodged his application now some 7 years ago and is [Age]. In Australia the applicant has navigated his way surviving in a foreign culture and language and has even worked here. Presumably he has built a network of associates and has new skills he could adapt to the Taiwanese economic environment.
The Tribunal therefore rejects that the applicant will suffer a threat to his life or liberty; significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens his capacity to subsist; that he would be denied basic services, where that denial threatens his capacity to subsist; or that he would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist.
It is difficult for the Tribunal to accept that the applicant does not have the resources on return to Taiwan to rebuild an independent and productive life as an adult. The applicant has proved resilient in maintaining his existence here. The Tribunal does not accept that the applicant would not be able to re-establish himself in Taiwan were he to return now or in the reasonably foreseeable future. Nor does the Tribunal have evidence that the applicant would be hindered by the State or other non-state actors to be able to survive in Taiwan. This is particularly so as the Tribunal has rejected that the applicant has any profile with any religious organisation as a deserter of Tenrikyo.
Even if the Tribunal were wrong in not accepting the applicant’s claims, in its decision which the applicant has had the benefit of reviewing, the Department set out country information indicating that the state of Taiwan is willing and able to offer protection.
The National Police Agency (NPA) was established under the Ministry of the Interior and is responsible for police affairs such as safeguarding the central government, maintaining social order, preventing and investigating crimes, protecting foreigners and formulating police systems. The NPA also commands and supervises all police organisations to carry out missions. The Criminal Investigation Bureau (CIB) is established under the NPA.[4]
[4] CXBD6A0DE18842: “National Police – 2015 Outline of the Ministry of the Interior (Republic of China—Taiwan), 01 January 2015.
The Tribunal also notes from the Departmental decision that Taiwan is not corrupt free and that therefore it is not a perfect society[5]. Nonetheless, the test is not whether the protection that can be provided to applicants is perfect, rather it is whether the country is willing and able to offer protection, and the Tribunal accepts that even if the applicant’s claims, which the Tribunal has rejected in their entirety, were true, then the applicant could avail himself of a reasonably effective law enforcement and judicial system (as set out in the Departmental decision) in Taiwan. The country information demonstrates that the protection offered by the State of Taiwan is durable, the protection consists of an appropriate criminal law, a reasonably effective police force, and an impartial judicial system.[6]
[5] NGE43874C341: “Freedom in the World 2016 – Taiwan’, Freedom House, 29 June 2016.
[6] NGE43874C341: “Freedm in the World 2016 – Taiwan” Freedom House, 29 June 2016, p4.
Again, this country information is now outdated but the Tribunal would have been interested at a hearing to hear from the applicant why he considered if he were subjected to persecution or serious harm in Taiwan, he could not resort to enlisting the assistance of law enforcement agencies to protect him from the claimed harm.
It would appear also that there are reasonable checks and balances in the Taiwanese law enforcement landscape, as the US Department of State reports that “[c]ivilian authorities maintained effective control over the NPA and authorities had effective mechanisms to investigate and punish abuse and corruption. There were no reports of impunity involving security forces during the year”.[7] Freedom House also reported that police largely respected a ban on arbitrary detention and attorneys were allowed to monitor interrogations to prevent torture.[8]
[7] OGD95BE926327: ‘Taiwan-Country Report on Human Rights Practices 2015’, US Department of State, 13 April 2016, p3.
[8] NGE43874C341: ‘Freedom in the World 2016 – Taiwan’ Freedom House, 29 June 2016, p4.
At a hearing the Tribunal would have asked the applicant to comment on the country information he has had the benefit of viewing for some years now and would have asked why he considered, for example, that confinement, where one could all but lose their life, would be considered a trifling matter by the police in his home country.
Given the Tribunal has rejected the applicant’s claims individually and cumulatively due to the limited information presented and because the country information does not support the applicant’s claims, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
This requires the Tribunal to have consideration as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm. The Tribunal has rejected his claims individually and cumulatively and has found that the applicant and his family and other associates will not face any serious harm by the government of Taiwan, a religious organisation called Tenrikyo, or any other non-state actors.
An applicant will suffer significant harm (as opposed to serious harm) if the applicant were to be deprived of his life; or the death penalty will be carried out on the applicant; or he will be subjected to torture; or he will be subjected to cruel or inhuman treatment or punishment; or the applicant will be subjected to degrading treatment or punishment on being removed to Taiwan. For the reasons set out in this decision the Tribunal does not accept that the applicant has made out any genuine claims to fear harm of any kind and the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any reason if removed to Taiwan.
Consequently, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
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.
…

[2023] AATA 4710

7 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

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Appeal

Natural Justice