2018412 (Refugee)

2018412 (Refugee) [2022] AATA 4786 (25 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2018412
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Tania Flood
DATE:25 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 October 2022 at 11:56am
CATCHWORDS
REFUGEE – Protection visa – Taiwan – debts owed to financial companies – feared harm from loan shark – there is effective state protection available to the applicant – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 December 2020 to refuse to grant the applicant a protection visas 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 8 March 2020. The visa was refused as the delegate was not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm on return to Taiwan because of debts owed to financial companies.
The applicant appeared before the Tribunal on 20 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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 there is a real chance the applicant will suffer serious harm if he returns to Taiwan for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there is a real risk he will suffer significant harm if he is removed from Australia to Taiwan.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
The applicant arrived in Australia on [date] April 2014 as the holder of a UD 601 visa. He departed Australia and returned on [date] October 2017 on a student visa. He departed and re-entered Australia a third time on [date] March 2019 on a student visa. He last entered Australia on [date] March 2020 on a UD 601.
On 8 March 2020 the applicant applied for a Protection visa together with his now ex-wife who was the primary applicant. On 24 December 2020 a delegate of the Minister refused the Protection visa application. On 30 September 2022 the applicant’s ex-wife withdrew from the application for review. She was notified separately of the outcome of the withdrawal application.
According to information contained in the application for a Protection visa, the applicant is a [age] citizen of Taiwan. He was born in Zhanghua, Yaoyuan province in Taiwan. The applicant indicated that he lived in Zhanghua, Taiwan from March 1990 to March 2020. The applicant provided no family composition details, except for his wife to whom he has been married since March 2008. His wife is residing in Australia. He completed both primary school and high school in Taiwan. The applicant states that he has never been employed, he is not currently employed and that he supports himself by ‘doing a little business’ and borrowing from friends.
The applicant made the following claims on his protection visa application form:
He indicates that he left Taiwan because he owes 200,000 dollars that he borrowed from a usury company in his wife’s name. He says that ‘they” are pressing for repayment of debts every day, and have caught him, beat him, and forced his wife into prostitution.
He states that he did not try to move to another part of Taiwan to seek safety because ‘they” are very powerful and spread all over Taiwan.
If he returns to Taiwan, he states that he will be beaten, abused and possibly killed. He states that the people in the financial companies are all members of gangs. The authorities will not protect him as the police would not take his report and they were bribed by the finance company.
Protection visa interview
The applicant was not invited to a Protection visa interview at the Department.
Documents submitted to the Department
The applicant provided, with his protection visa application, a copy of his passport issued [date] 2016 by the Ministry of Foreign Affairs.
Documents submitted to the Tribunal
On 20 October 2020 the applicant provided a typed statement in support of his claims. The statement contains the following information:
In September 2019 he was undertaking a [project] as a sub-contractor in Taiwan. After completion of the project the contractor did not pay him as promised. He was supposed to receive payment within three months from the date of completion but in the meantime he needed to pay his workers salaries. He went to an underground bank to borrow one million Taiwan dollars with a high interest rate of twenty percent. He later heard from others that the contractor had disappeared with all the money. After two months payment to the underground bank he gave up keeping the agreement and told them he could not repay the loan. From then on, the underground bank started threatening him from time to time. He was harassed in the night and his life was in danger. He was stalked whenever he went out. He knew the consequences of not paying and was very scared. Eventually he fled to Australia. The threats never ended even after he came to Australia and because of arguments over this he and his wife divorced.
Tribunal hearing
When the applicant appeared before the Tribunal he gave oral evidence in respect of his background in Taiwan, the circumstances which caused him to depart Taiwan in March 2020 and the reasons why he fears returning to Taiwan in future. His testimony is summarised as follows:
The application for protection was completed by his now ex-wife as he does not speak English. He said the reason given in the application for the need for protection has not changed, namely that he is fleeing harm related to an outstanding debt in Taiwan.
The applicant stated that since returning to Australia in March 2020 he and his wife have divorced. He put this down to arguments over the debt he incurred.
Before moving to Australia he and his now ex-wife resided in a house given to his ex-wife by her family. He said they lived there after marriage for about four to five years. He said that currently that house is occupied by his ex-wife’s mother and his ex-wife’s daughters from a previous relationship.
He has no remaining family in Taiwan. His mother passed away a decade ago and he never knew his father. He has no siblings.
He completed junior high school in Taiwan and worked as a [occupation]. After completing an apprenticeship he established his own [business] in 2019 using savings of approximately two to three million Taiwan dollars.
He explained that in 2019 he was working as a subcontractor. He said he won a contract which was valued at 5 million dollars. He said he won the contract on 5 September 2019 and it was due to be completed in 3 months. He hired 10 staff to do the work.
He had an agreement with the main contractor to complete the project with payment to be made three months after. He said he thought he could survive by paying his workers from his savings but by around November he realised he would need a cash injection. He thought he could borrow money for 20 plus days and repay it when he received the payout from the contractor. That way he would only have to pay interest for 20 plus days.
He said he borrowed 1 million Taiwan dollars from a loan shark introduced to him by a friend. He said the interest on that amount was 200,000 Taiwan dollars which he paid upfront from the total amount borrowed. The remaining 800,000 dollars he used to pay his 10 staff. He took out the loan in his own name on approximately 10 November 2020 and was required to repay it by 10 December 2020. He said the terms of the loan were written on a document which was retained by the loan shark. He has no evidence to support the existence of the loan.
He never received payment for the completed project. He found out that the contractor had disappeared and he was never paid for the work he completed. He reported the matter to the police and he was told to wait until an investigation was completed. He was asked to provide the name, home telephone number and address of the contractor. He has no evidence to support a report was made to the police in this respect.
Without the payment owed to him he was unable to repay the loan shark. He said he was very scared and asked local government officials to help him resolve the matter but there was not result. He said the loan shark sent people to ignite firecrackers outside his house at midnight and sprayed paint on his house. He said he was followed whenever he went out. He said he thinks his ex-wife was also being followed because her daughter told him a car followed them whenever they went to the market. He was also told by neighbours that a strange car was seen nearby. He said he was only approached directly by such persons once who threatened that he needed to repay the money. He said it was impossible to look for other work in such circumstances so he decided to leave and come to Australia.
The applicant was asked whether his ex-wife’s mother and children who are still living in the house he formally occupied have been visited or threatened by the loan shark in his absence. He said that when he first came to Australia he was told people were still monitoring the house.
The applicant confirmed that he did not report the threatening behaviour of the loan shark to the police. He said he did not because it is true he owed them money. He said in any event it would have been useless because the police cannot protect him from such gangsters. The Tribunal put it to the applicant that this is not consistent with country information reports which indicate the police force is effective and do take action against organised criminals. The applicant responded that the police cannot provide protection 24 hours a day and he would still need to go out to work each day.
The applicant was asked if he has repaid any of the loan since being in Australia. He said he has not but he doesn’t like owing money and will try his best to do so. He said he has only just begun to amass some savings. Currently, he said he has saved approximately $10,000. When asked why he could not return to Taiwan, find work and continue to repay the loan he said that he would not be able to go out to work because he would be monitored and under threat by the loan shark. He said the loan shark will not accept repayment in instalments.
Country Information
It is reported that the Taiwan police are effective, that violent crime rates are among the lowest in the work and crime is generally low[1]. A 2021 independent survey measuring public satisfaction with justice and crime policies shows that for the third consecutive year more than 80 percent of the respondents were satisfied with the police in maintaining public safety.[2]
[1] Taiwan Country Security Report, Overseas Security Advisory Council, US Department of State, 15 October 2021
[2] Public Satisfaction with the Police is over 80% in 3 Consecutive Years Citizens Support Drug Enforcement, Fraud Prevention and Various Measure by the Police, Ministry of Interior (Taiwan), 25 February 2022
The Organised Crime Prevention Act 2018 includes a broad suite of offences including being a member of, financing, recruiting for or threatening a person in the name of an organised crime group.[3] By May 2021 police had arrested 161 suspected gang members and similarly 259 including 25 major criminal figures were arrested in 2020.[4] Three hundred and fifty people were detained in a nationwide crackdown on organised criminals and loan sharks in May 2019.[5] More than 300 were arrested in a similar 2018 crackdown.[6] In 2021 Taipei’s police commissioner vowed to intensify police efforts by conducting more frequent operations.[7] Some sources from 2016 claim that over decades, the reach, discipline and effectiveness of organised crime has decreased and that these organisations are now generally unsophisticated.[8]
[3] Organised Crime Prevention Act, Government of Taiwan, 3 January 2018
[4] Law and Order: Taipei police commissioner reassures public on safety, Taipei Times, 7 May 2021
[5] Police detain 350 in crackdown on organised crime, Taipei Times, 4 May 2019
[6] Raids and 310 arrests as Taiwan cracks down on criminal gangs ahead of elections, Hong Kong Free Press, 4 May 2018
[7] Law and Order: Taipei police commissioner reassures public on safety, Taipei Times, 7 May 2021
[8] Is Taiwan’s Organised Crime Receding or Going Deeper Underground?, Tim Ferry, American Chamber of Commerce in Taipei, 24 May 2016
Usury (loan shark) activities are a crime and can attract a penalty of up to five years in prison.[9] Monitoring, intrusion upon, threats, intimidation and actual harm in an effort to instil fear are all criminalised and loan sharks have been targeted in broad crackdowns against criminals. [10] Police operations against loan sharks are reported in the Taiwanese media and hundreds of loan sharks have been arrested in recent years.[11]
FINDINGS AND REASONS
[9] Criminal Code of the Republic of China, Government of Taiwan, as amended to 15 January 2020
[10] Criminal Code of the Republic of China, Government of Taiwan, as amended to 15 January 2020; Police detain 350 in crackdown on organised crime, Taipei Times, 4 May 2019
[11] 8 gang members arrested for illegal collection of debts in Taipei, Focus Taiwan, 14 March 2021; Police detain 350 in crackdown on organised crime, Taipei Times, 4 May 2019; Police tout results of raids on gun, loan operations, Taipei Times, 24 June 2019
Country of reference
The applicant has produced a copy of his passport which supports his claim to be Taiwanese. In the absence of any information to the contrary the Tribunal accepts the applicant is a Taiwan national.
Feared harm from loan shark
Several inconsistencies between the applicant’s written and oral evidence cause the Tribunal to doubt the truthfulness of the claims presented for consideration.
Firstly, in the application for the Protection visa it is claimed that the applicant secured a loan of 200,000 dollars; not 1 million dollars as was claimed during the hearing. Furthermore, it is stated in the written claims that the loan was taken out in the name of the applicant’s now ex-wife whereas during the hearing he confirmed the loan was under his name. Additionally, the written claims indicate that the applicant was beaten and that his now ex-wife was forced into prostitution by the finance company the money was loaned from. There was no indication from the oral evidence presented during the hearing that the applicant was physically assaulted and at worst his oral evidence indicates his now ex-wife was merely tailed by a vehicle when going to the market.
The Tribunal discussed the above concerns with the applicant during the hearing. He expressed surprise about what is written in the application form. He said that his latest statement sent by his solicitor is accurate and he stated he believes it is more or less the same as the original statement. He added he wasn’t aware what happened to his wife in Taiwan because she never told him about it.
The Tribunal has considered the applicant’s responses but does not agree with his assertion that the evidence is more or less the same. The Tribunal considers there are major differences about key aspects of the claims including a significant discrepancy about the amount of money borrowed; in whose name the loan was taken out and the claimed subsequent mistreatment at the hands of the finance company or loan shark. While he expressed surprise during the hearing about the contents of the visa application form he provided no explanation as to why his wife would have misrepresented the details in such a significant way. Also, the Tribunal is not convinced that the applicant would to this day be unaware that persons forced his now ex-wife into prostitution when he defaulted on the loan repayments if that was indeed the case.
The above factors cause the Tribunal to doubt that the applicant’s claims to be indebted to a loan shark, to have been threatened and harassed by a loan shark in the past and at risk of serious or significant harm at the hands of a loan shark in Taiwan in future can be believed.

However, in the event the Tribunal is wrong and the applicant’s claims are to be believed the country information reports mentioned above indicate that he would be able to avail himself of effective state protection against any harm he might encounter at the hands of a loan shark in Taiwan. The Tribunal notes the applicant’s claim that he went to local government authorities for help in the past but achieved no result, however, his evidence in this respect was vague and undetailed. Notably the applicant claims not to have gone directly to the police who are tasked under the law with investigating complaints in respect of loan sharks.
The Tribunal accepts, as the applicant claimed at hearing, that the police would not be able to guard him 24 hours per day. However, the Tribunal is nevertheless satisfied, based on the information outlined above, that the Taiwan police, in accordance with the law, can and do arrest and prosecute persons involved in illegal money lending and/or who engage in threatening and intimidating behaviour and actual violence in efforts to recover loan monies. The Tribunal is satisfied that the applicant can access protection from a state authority, that the protection is durable and supported by appropriate criminal law and a reasonably effective police force. Therefore, the Tribunal is satisfied that there is effective state protection available to the applicant in Taiwan against the harm he fears.
For the above reasons, the Tribunal finds there is not a real chance the applicant will suffer serious harm at the hands of a loan shark if he returns to Taiwan now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Taiwan for the reasons claimed.
The Tribunal finds the applicant is not a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2) (aa) of the Act. For the same reasons already articulated above, the Tribunal is satisfied that should the applicant be threatened with harm by a loan shark on return to Taiwan he could obtain, from an authority of Taiwan, protection such that there would not be a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 4786

25 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice