2012360 (Refugee) - [2025] ARTA 1445

2012360 (REFUGEE) [2025] ARTA 1445 (26 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2012360
Tribunal:General Member S Waring
Date:26 March 2025

Place:Brisbane
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
REFUGEE – Protection Visa – Taiwan – tension between Taiwan and China – political opinion – pro-independence views – a supporter of the TPP – a member of the Sunflower School Movement – not satisfied that the applicant faces a real risk of serious or significant harm – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 July 2020 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 national of Taiwan, applied for the visa on 19 August 2019. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or the complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
On 3 August 2020 the applicant lodged an application for review with the former Administrative Appeals Tribunal (the AAT). The applicant provided a copy of the delegate’s refusal decision as part of the review application.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 3 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The issue to be considered in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act.
BACKGROUND
The applicant is a [age]-year-old male who claims to be a citizen of Taiwan. He is also known as [names].
The applicant first arrived in Australia on [date] May 2017 and has made numerous trips overseas since then. The applicant most recently entered Australia on [date] August 2019 and applied for a protection visa on 19 August 2019.
The applicant was raised in [a] Township in Taiwan where his mother (now widowed) continues to reside.
The applicant studied [at] [a] University and graduated in June 2014.
The applicant settled in [NSW] upon arrival in Australia.
Evidence before the Department and the Tribunal
No interview was undertaken by the Department.
When the protection visa application was lodged the Department wrote to the applicant acknowledging the application and advising that he could present further information for consideration - including via his online account. The applicant did not submit any further material to the Department. As such, the evidence taken into account by the Department included:
·the applicant’s protection visa application.
·supporting documents including personal identifiers sighted by the Department as part of an identification test.
In addition to the above documents, a movement record of the applicant’s transit in and out of Australia is also before the Tribunal.
Also before the Tribunal is a submission made by the applicant in a pre-hearing form submitted on 8 May 2024.
The Tribunal also received evidence and submissions from the applicant at hearing.
The totality of evidence before the Tribunal is discussed and examined below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant provided a copy of the biodata page of his Taiwanese passport to the Department as part of his protection visa application. The delegate accepted that the applicant is a citizen of Taiwan and there is no information before me to the contrary. I find that the applicant is a citizen of Taiwan, and that Taiwan is his receiving country for the purposes of assessing his claims for protection.
Assessment of claims made in the visa application
The protection visa application sets out the applicant’s claims summarised as follows:
·He left his home country because China is preventing Taiwan from becoming independent.
·A war between Taiwan and China might start soon so it is dangerous to return there and he does not want to be involved in military conflict.
·Businesspeople in Taiwan support China and people who disagree with them cannot find a job.
·Because the government is useless, the Taiwanese people cannot live comfortably in their own country or be themselves.
·From all over Taiwan, people are running away because they fear China will start a war.
In the pre-hearing form submitted on 8 May 2024, the applicant states (verbatim):
“I have been Australia for many years, the reason that I can’t go back to my country as the situation now is still not clear, if I go back than could force to face a brutal time. Besides, I am integrate into society here. I will try to collect all the evidence on hearing date, please reconsider my case.”
No documentary evidence was provided by the applicant after 8 May 2024.
Contrary to the statement in the protection visa application that the form was completed without external assistance, the applicant stated at the hearing that he had help from a migration agent. As the agent verified the responses and information provided with him in Mandarin before lodging the form, the applicant confirmed the protection claims raised therein are accurate and truthful as far as he knew.
The applicant stated that the department’s decision had been read to him in Mandarin.
The applicant told the Tribunal that his family members live in Taiwan. His mother is a farmer living in a rural area. His brother joined the military at age [age] and (now a [age]-year-old) lives in an army camp. The Tribunal heard that the applicant has not seen his mother for a long time - “I can’t go back to visit her.. because of visa restrictions.” The older brother of the applicant had told him to ”stay away” because tension between Taiwan and China is getting “worse and worse”.
The Tribunal asked the applicant for details of his overseas travel in 2018 and 2019. The applicant responded that he had visited family in Taiwan during both trips. Despite his visits home, the applicant stated that his fear of returning to Taiwan has escalated while he has been in Australia. The applicant stated “my fear increased by reading the news - seeing China pressing military power on a larger scale. Last week they were sending warships, [there were] military drills and aircraft activity.”
The applicant explained to the Tribunal that he cannot see himself being hurt personally (if he returns to Taiwan) but that he fears war will break out soon. The applicant stated that he “does not dare to go back.” When asked about the type of harm he fears might occur if he returned to Taiwan, the applicant stated “myself and [all of] Taiwan have fear that China could start attacking - but that hasn’t happened yet .”
The Tribunal queried claims made about employment discrimination made in the protection visa application which states “most businessmen are close to China, so if people do not agree with them [they] cannot find a job.”
The applicant explained at hearing that is not claiming that he personally could not find a job due to his political opinion. The applicant confirmed that he was employed by a [Workplace 1] in Taiwan following his tertiary [study]. The applicant’s evidence at hearing was that he had suffered pay-parity discrimination. The applicant believed he was paid 20% less than his pro-China colleague at the [Workplace 1], despite having similar work experience. The Tribunal asked the applicant why he concluded that he was being paid less. The applicant responded that he noted the disparity when the colleague (with different political views) disclosed to him the higher remuneration he was receiving.
The Tribunal asked the applicant why he believed that the pay-parity discrimination by the [Workplace 1] was based on political grounds. The applicant stated that it is ”public knowledge in Taiwan” that key officials in every [Workplace 1] are pro-China in their political opinions.
The applicant confirmed that he did not leave his job at the [Workplace 1] due to his perception of discrimination. Rather, the applicant had saved enough funds to travel to Australia.
Political Opinion
The applicant stated that he is strongly opposed to the one-China policy and does not believe that the ruling DPP government is taking strong enough measures to secure Taiwan’s independence. The applicant described the DPP government as “all useless” adding criticism that the DPP had “used an independence platform only to get votes .” Once the DPP had gained power, the applicant stated they “did not take on different views.” The applicant described the current political situation in Taiwan as “chaotic - parties fighting with each other.”
When he was a student, the applicant joined the Sunflower School Movement that supported stronger pro-independence measures and challenged the ideology of the government. The applicant attended “quite a few activities” with the group including a protest (sitting outside the legislative bureau) demanding explanations from government. When this protest became violent (causing property damage and resulting in arrests) the applicant stopped being a member of the group. The applicant indicated that he has not been actively involved in protesting since this event occurred between 11 and 13 years ago.
The applicant told the Tribunal that he makes donations to certain political groups in Taiwan but is not active in protesting. The applicant now lends support to the Taiwan Peoples Party (TPP) which offers candidates for election. The applicant did not describe himself as politically active on social media – saying that he only discusses politics with friends and family – hoping to persuade them to vote for the TPP.
The Tribunal found there to be an overall consistency and plausibility in the applicant’s recounting of involvement with the Sunflower School Movement protest and accepts that the applicant is a supporter of the TPP and that his political views (on measures to be taken towards independence) do not wholly align with government policies.
Fear of Harm

35. The applicant remains abreast of political issues in Taiwan via news and social media where he has viewed media reports of Taiwanese authorities using unscrupulous methods to bring criminal charges against TPP officials. The applicant gave the example of the chief of the TPP who was detained (without there being evidence to do so) longer than the two-month lawful maximum period.
36. The Tribunal heard that (as reported by the media) supporters of the TPP have been subjected to verbal and online abuse – particularly those who speak out against the government. The applicant indicated that such abuse is intended to punish people for drawing attention to the poor performance of the government and the unscrupulous methods it employs against the TPP.

The applicant did not submit that, if returned to Taiwan, he feared being subject to persecution by the authorities. The applicant stated that if he did not violently advocate his views, he would not face persecution.

38. Of more significance to the applicant is his fear that because of the escalating tension between China and Taiwan, there is a risk of the outbreak of war between China and Taiwan.
39. In his protection visa application, the applicant states “if I go back then could [be forced] to face a brutal time.” The Tribunal asked the applicant how he perceived he would be harmed personally because of tension (or possible military conflict) between China and Taiwan. The applicant did not submit that he is an army reservist or that, if returned to Taiwan, his life could be put at-risk in defence of his country.

The applicant confirmed for the Tribunal that he does not fear being tortured, slain, punished or subjected to inhuman/degrading treatment if he returned to Taiwan.

Criteria for 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.

REASONS AND FINDINGS

The issue to be considered in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
Well Founded Fear
It is the applicant’s claim is that he has a well-founded fear of persecution, if returned to Taiwan due to the escalation of tensions between China and his home country. The Tribunal considers that at the hearing, the applicant put forward a further claim for protection based on the applicant’s political opinion.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379 (Chan).
The criterion in s 5J(1)(b) imposes an objective requirement, 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. Applying this objective test to the applicant’s circumstances is addressed discussed below.
The Tribunal has considered (in accordance with Ministerial Direction No.84) country information published by the Department of Foreign Affairs and Trade (DFAT). In a Country Brief published by DFAT in 2024[1] political power in Taiwan is explained as follows:
“In 2019, Ko Wen-je established the Taiwan People's Party (TPP) as a third-force, reformist alternative to the two major parties. The TPP solidified three-party politics in Taiwan during the 2024 elections. Ko Wen-je came third in the electoral race to lead Taiwan with 26.5 per cent of the vote, the best result for a third party since 2000. The TPP increased its number of seats in the legislature to eight and holds the balance of power in the Legislative Yuan.”
[1] Australia-Taiwan relationship | Australian Government Department of Foreign Affairs and Trade
Referring to relations between Taiwan and China, the DFAT Country Brief explains that:
“ 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'.”
The DFAT Country Brief acknowledges that:
“ Cross-Strait relations have become more difficult since the DPP were elected in January 2016. Beijing has criticised DPP leadership for not endorsing the '1992 Consensus' and has suspended official and semi-official channels of communication.”
Country information sources consistently indicate that political controversy around independence and the ‘one-China’ policy is ongoing in Taiwan with protests and public political debates on the issue occurring regularly.
According to the ‘Taiwan Country Security Report’ (TCSR) prepared and published by the Overseas Security Advisory Council, United States Department of State on 7 July 2023, protests and demonstrations occur on a regular basis in major cities, particularly during elections but they rarely become violent.
The TCSR also reports:
·There is minimal risk from political violence in Taiwan.
·Demonstrations rarely turn violent, although they may become confrontational
between opposing groups.
·Protest organizers must obtain permits from the police.
·Police often set aside areas for demonstrators, and police presence is clearly
visible.
The TCSR was updated on 10 September 2024 and reported on political stability (and violence) in Taiwan as follows:
“There is minimal risk from political violence in Taiwan. Taiwan enjoys a vibrant democracy.” 
“The U.S. Department of State has assessed Taipei as being a LOW-threat location for political violence directed at or affecting official U.S. government interests.”
Outbreak of War

The primary claim for protection made by the applicant relates to his fear of war breaking out between China and his home country. He stated at hearing that the tension between China and Taiwan “is getting worse and worse“ with China “pressing military power on larger scale [including just] last week they’re sending warship, military drills and aircraft activity.”
The Tribunal accepts that the applicant has significant concerns about reported escalations of military action by China which he believes may herald an invasion of Taiwan.
The Tribunal notes however that in 2024, analysts assessed the likelihood of a full-scale military invasion of Taiwan to be low and the success of such an invasion was reported as being far from certain. Analysts have opined that an unsuccessful invasion would severely damage China’s global standing, economy and the CCP’s grip on power[2]. [3] [4] [5]
[2]    Jude Blanchette and Gerard DiPippo,
[3]     David Sacks, ‘Why China would struggle to invade Taiwan’, Council on Foreign Relations, 12 June 2024
[4]     Peter Wonacott, ‘Costly conflict: here’s how China’s military options for Taiwan backfire’, United States Institute
[5]     Lonnie Henley, ‘Many ways to fail: the costs to China of an unsuccessful Taiwan invasion’, United States
Having regard to the High Court’s consideration of ‘real chance’ in Chan (cited above), the Tribunal must assess the applicant’s claims in terms of the reasonably foreseeable future rather than projecting the assessment out as far as the applicant’s potential lifespan. The Tribunal does not assess ‘real chance’ by considering predictions of the future that are far removed in time from the reality of the circumstances the applicant would currently face if he returned to Taiwan.
I acknowledge that the applicant has genuine concerns about returning to Taiwan given tensions in the region. Even so, China has to date not launched an invasion and the Tribunal is not persuaded (on the available information) that a full-scale military invasion, to take Taiwan by force, will occur in the reasonably foreseeable future.
Based on available country information, the Tribunal accepts that geo-political tension between Taiwan and China (and the risk of open conflict) are issues of great concern for the general population of Taiwan. Nevertheless, the Tribunal finds that there is not a real chance that an outbreak of war would cause the applicant to suffer serious harm in the reasonably foreseeable future if he returned to Taiwan.
Political Opinion
The applicant gave evidence, accepted by the Tribunal, that he subscribes to the pro-independence policies of the TPP. In the 2024 election, the TPP put forward one of the main presidential candidates (Ko Wen-je).[6] Based on this information, it is the view of the Tribunal that the applicant supports a mainstream party which now has political legitimacy in Taiwan as well as a significant following.
[6] See the International Foundation for Electoral Systems Guide for Taiwan
The applicant told the Tribunal that, as a student (2010 to 2014) he was a member of the Sunflower School Movement and attended a protest with them that had been sanctioned by authorities. It is reported that protests and activism occurred in Taiwan during 2014 when the KMT had been in power for several years[7].
[7] ‘Occupy Taiwan’ by Mark Harrison, published in Shared Destiny, edited by Geremie R Barmé, Linda Jaivin and Jeremy Goldkorn, published 2015 by ANU Press.
In published analysis it is reported that the political landscape in Taiwan has changed dramatically since 2014[8] when the DPP was elected to form government in January 2016. According to the applicant, the DPP government (which replaced the KMT) presented itself to electors as favouring Taiwan independence. The applicant told the Tribunal that he believes the government has not ‘lived up to’ its pro-independence promises and for this reason, he supports the TPP which advocates for more vigorous action on independence.
[8] U.S.-China Economic and Security Review Commission, Issue Brief, 28 January 2016, ‘Taiwan Opposition Party Wins Presidency and Legislative Majority in Historic Elections’
The Tribunal raised with the applicant the passage of time since the Sunflower School Movement protest (more than a decade ago) and queried whether he fears being harmed in Taiwan because he had attended that protest. The applicant responded that he does not fear physical harm if returned to Taiwan.
Persecution/Serious harm
The Tribunal is guided by examples of instances of ‘serious harm’ appearing in s 5J(5). Such instances include, for example, a threat to a person’s life or liberty, a significant physical harassment or a significant physical ill-treatment of the person, or circumstances that threaten the person’s capacity to subsist.
While the Tribunal accepts that the applicant believes he was treated less favourably (in employment) than a ‘one-China’ supporter, there is no evidence before the Tribunal to establish that such discrimination occurred. The Tribunal does not accept that the applicant suffered pay-parity (or other) discrimination while he was employed in Taiwan.
The Tribunal concludes that the hardships the applicant would encounter by attracting verbal/online abuse (or disagreements with one-China supporters), as challenging as those may be, are not such severe forms of harm that they fall within the kinds of conduct covered by s 5J(5).
As recorded above, the applicant told the Tribunal that he does not fear physical harm, punishment, inhuman (or degrading) treatment if he returned to Taiwan. This is accepted by the Tribunal.
Based on the accepted evidence and country information, the Tribunal does not find that if the applicant were to return to Taiwan, he has a real chance of being subjected to serious harm or persecution by reason of the following (or at all):
·    His pro-independence views.
·    His support for the mainstream TPP party.
·   His participation in the protest organised by the Sunflower School Movement in or about 2014.
For the reasons given above, and having considered the applicant’s claims individually and
cumulatively, the Tribunal is not satisfied that if the applicant returned to Taiwan he would face a real chance of persecution for any reason set out in s 5J(1)(a) of the Act, or for any other reason. The Tribunal does not find that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. The applicant is therefore not a refugee as defined in s 5H(1) of the Act.
The Tribunal finds the applicant does not satisfy s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having found the applicant does not satisfy the refugee criterion in s 36(2)(a) of the Act, the Tribunal must proceed to consider whether in the alternative, the applicant is able to engage Australia’s protection obligations under the complementary protection criterion in s 36(2)(aa) of the Act because there are substantial grounds for the Tribunal to believe that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of the applicant’s removal from Australia to Taiwan.
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).
The Tribunal has concluded above that the potential harms claimed by the applicant (as possible if he returned to Taiwan) do not constitute ‘persecution’ or ‘serious harm’ and do not engage Australia’s refugee protection obligations. When assessing the complementary protection criterion, the Tribunal now turns to consider whether the types of potential harm claimed by the applicant constitute ‘significant harm’.
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). It is significant for this case that s36(2B)(c) specifies a proviso that there is not taken to be a real risk that a person will suffer significant harm in a country if the Minister is satisfied that “the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.”
Based on the evidence discussed above, the Tribunal is satisfied and finds that the risk of war breaking out in Taiwan is one faced by the population of the country generally rather than a risk faced by the applicant personally. Similarly, the Tribunal finds that (despite Taiwan being an open democracy) the general population of Taiwan is faced by some risk of harm by supporting one political party over others. Such risks include verbal or online abuse or less favourable treatment in employment, from those with different political views.
Having regard to s36(2B)(c), the Tribunal finds that the types of potential harm claimed by the applicant do not constitute ‘significant harm’ because such risks are faced by the Taiwanese people generally and not by the applicant personally.
As regards ‘significant harm’, the Tribunal also finds that the types of potential harm claimed by the applicant do not fall within the examples set out in ss 36(2A). Such actions include arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, degrading treatment or punishment.
For the reasons given above, the Tribunal concludes that the applicant does not have a real risk of significant harm as a necessary and foreseeable consequence of his removal from Australia to Taiwan. Therefore, the Tribunal concludes that the applicant does not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.
Other criteria – member of the same family unit
Finally, as the applicant has not claimed to be a member of the same family unit as another person in respect of whom Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant, and given there is no evidence before the Tribunal to suggest the contrary, the Tribunal also finds that the applicant does not satisfy s 36(2)(b) or s 36(2)(c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of Hearing: 3 March 2025

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

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

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.

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.

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:

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;
conceal his or her true race, ethnicity, nationality or country of origin;
alter his or her political beliefs or conceal his or her true political beliefs;
conceal a physical, psychological or intellectual disability;
enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

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.

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.

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:

the first person has ever experienced; or
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:

the characteristic is an innate or immutable characteristic;
the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.
5LA Effective protection measures

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:

the relevant State; or
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.

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.
…

Protection visas – criteria provided for by this Act

…

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:

is mentioned in paragraph (a); and
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:

is mentioned in paragraph (aa); and
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.
…

‘“Reunification” with Taiwan through force would be a pyrrhic victory for
China’, Centre for Strategic and International Studies, 22 November 2022

of Peace, 9 October 2024

Institute of Peace, 5 November 2024