2201909 (REFUGEE) - [2024] ARTA 196

2201909 (REFUGEE) [2024] ARTA 196 (25 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2201909
Tribunal:General Member A Faram
Date:25 November 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 25 November 2024 at 1:30pm

CATCHWORDS
REFUGEE – Protection Visa – Taiwan – feared harm from loan sharks – applicant has provided insufficient details – father’s involvement (past or ongoing) in organised crime – claims do not have a credible basis – applicant does not face a real chance of serious harm or a real risk of significant harm –credibility concerns – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
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
COUNTRY OF REFERENCE TAIWAN

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 January 2022 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicant, a national of Taiwan, applied for the visa on 9 March 2020. The delegate refused to grant the visa on the basis that he would be protected by the authorities from the harm he feared from loan sharks, such that there was not a real chance or a real risk, under the refugee and complementary protection criteria respectively, that he would experience serious or significant harm in Taiwan.
On 13 February 2022, the Applicant sought review of the delegate’s decision by lodging a review application with the Administrative Appeals Tribunal (the AAT).
On 14 October 2024, the AAT was replaced with the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The Applicant appeared before the Tribunal on 8 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND AND EVIDENCE BEFORE THE TRIBUNAL
The Applicant first arrived in Australia on [date] May 2016. In his protection visa application form, he set out that he was born in Taipei City on [date], and was not married. His mother and sister remain in Taiwan. Prior to coming to Australia, he lived in Taipei City where he finished high school in 2008. He did not work in Taiwan and was supported by his family. He is of Chinese ethnicity and does not practice a religion.
The Applicant gave the following reasons, set out below in summary form, for seeking protection in Australia:
-My family owed money to loan sharks and they threatened my life, so I fled to Australia.
-My parents borrowed the money, and the interest was high and they could not make repayments on time. They often sent people to harass and threaten us. My parents, worried about my safety, sent me abroad.
-The Taiwanese government is riddled with corruption and wherever I go I will be caught by them and harmed.
-The corruption is serious and if I go back I will be arrested by the police. They will torture me in prison.
-I could not relocate, the whole of China is the same. Officers only care about their benefits. No matter where I go I will be arrested by them.
Information before the delegate was limited to a copy of his passport and the completed protection visa application form.
As noted above, the Applicant sought review of the delegate’s decision. Prior to the hearing in his matter, he sent through three close-up photographs of his head. At the hearing, he explained that there was a scar visible there.
Oral evidence
The Applicant gave oral evidence to the Tribunal. He is now [age] years of age and has a girlfriend of two years, who is also in Australia. She is from Taiwan, holds a temporary visa and has not applied for a protection visa.
The Applicant gave evidence that he was assisted by a lawyer to lodge his protection visa application in 2020. That person is no longer assisting him.
His mother and father had two children, his elder sister and himself. They then separated and his father went on to have three other children. His elder sister supports their mother. They do not live together, and he does not know what his sister does for work. He speaks with his mother once a week. She lives in [a] City, near Taipei city.
The Applicant is not close with his father’s other children and did not grow up with them. He does not know where they live.
He finished school when he was around [age] or [age] years of age. His mum then supported him. She is no longer working, but she had previously [worked]. At some point he lived with his father in Taipei. He could not remember for how long he had done this.
Asked about his concerns for returning to Taiwan, the Applicant said that when he was in high school, in around [a year], he was one day attacked by over 20 people after he had walked out of the school gates. They didn’t say anything to him, they just surrounded and attacked him. He was beaten and then shot twice by a modified handgun. This happened when he was in [a year]. He gave evidence that after he was shot at, people ran away. He felt dizzy and walked, bleeding, to the station where he tried to clean himself up. When he came out an ambulance was there. He was taken to hospital, x-rayed and passed out.
The Tribunal asked the Applicant what he knew about why the incident had occurred, and he said it was do to with his father, who is a gangster, a member of a gang. His mother told him his father was from the underworld. Asked if he knew what gang his father had been involved with, the Applicant said that it was [name]. He never discussed it with his father.
The Applicant said that he was only in hospital for one day. His family was worried he would be targeted again, and they wanted him at home. He was shot in the collar bone and had seven wounds on his head. He didn’t know if they were caused by sharp or blunt objects. Asked why he thought the incident was related to his father if the attackers had not said anything, the Applicant said that he was a student – he could not think of why anyone would have attacked him in that way.
Asked if the police became involved, the Applicant said that they initially did not want to take on the case, but his father approached another officer, and the case went to court. The opposing gang then approached his father’s friend to arrange a conciliation and the case was settled.
The Applicant was not sure if the matter was settled in or out of court. His mother had wanted it to go through the court, but his father had not. His father said that the other side was formidable. He does not know the group’s name. He gave evidence that it settled about a month after the incident.
The Applicant changed schools after this, to another school in Taipei. He attended that school for 3 years. No other incidents occurred.
Asked if there was anything else that he was concerned about, the Applicant said that his mother had wanted the matter resolved through the courts and for them to pay compensation. He explained that there had been a court order that the perpetrators pay them TWD200,000.00. They did not do so, and his mother informed the court of this. They threatened them after his mother sought to have the court enforce the order. The court did not accept his mother’s complaint or do anything to enforce it. Asked if the family decided to let the matter go, the Applicant said they couldn’t do anything about it.
The Applicant confirmed that his concern about return to Taiwan related to this incident.
He gave evidence that in Taiwan, during his 20’s, he had worked part time in a [shop]. He had previously holidayed in [a country], though could not remember when. He first came to Australia in 2016. He came because his mum asked him to as she thought he would have a better life with family here. The Applicant explained that his paternal aunt and her family live in Sydney.
The Applicant said that each time he left Australia, after his initial arrival in 2016, he returned to visit Taiwan. He did not work when he last returned, for around 6 months, and he lived off his savings.
The Tribunal raised with the Applicant that his application talked about concerns based on his family owing money to loan sharks. The Applicant confirmed that that was true. Asked if it was still true, he said he did not know. The Tribunal asked the Applicant what he knew about it, and he said that his mum had borrowed some money, but he didn’t know much about it.
The Tribunal noted that he hadn’t raised it as a concern during the hearing. The Applicant said that it was, and that he was worried he would be pursued for the debt. The Tribunal asked the Applicant about the contents of his application where it indicated they, being both his parents, had borrowed money. The Tribunal noted his earlier evidence that his parents had not been together for some time and sought to clarify who had borrowed the money. The Applicant said that he did not know. Asked why a loan shark would target him, the Applicant said that they would do this because he is their son. Asked if anything had happened to them on account of the outstanding loan, the Applicant said that he did not know. Asked if anything had happened to his siblings, the Applicant said that he had not been in contact with them.
The Applicant did not know when the money had been borrowed. He was not aware of anything adverse having happened to any family members, or himself, with respect to a debt in the time before his initial departure from Taiwan in 2016. When he returned to Taiwan to visit, he had stayed with friends, and so nothing happened to him when he was back, and he did not know if anything had happened to anyone in the family in the period after 2016 until now.
The Applicant asked the Tribunal if he could provide a hospital document relating to his head injuries. The Tribunal confirmed that he could and asked the Applicant when he thought he would be in a position to do so. He said that his mother had already approached the hospital and been told that she could not get them because they were more than 7 years old.
At the conclusion of the hearing, the Tribunal asked the Applicant to provide any further information by 18 November 2024. Nothing further has been received.
The Tribunal had earlier noted to the Applicant that it considered that the primary issue in this matter was not so much whether a violent incident had occurred, but why it had happened and whether there would still be a real chance or a real risk of harm to the Applicant. The Tribunal noted, for example, that the incident happened nearly 20 years ago, and that on his evidence he had come and gone to Taiwan a few times since then. The Tribunal explained that in those circumstances, it might be difficult to accept that there was a real chance of harm to him because of what happened. The Applicant said that he understood. The Applicant clarified that he thought he had been around [age] or [age] when he finished high school and that he had been around [age], rather than [age] or [age], when the incident occurred.
The Tribunal raised with the Applicant that some of the information before it in relation to the debt claim was inconsistent. The Tribunal noted that the form had said he had faced threats to his life and that the loan sharks had been sent to threaten and harass them – but that he had not said that that had happened when he gave oral evidence. The Applicant said that that was because most of the time he had lived with his friend, rather than with his family and so he had not heard about it.
The Tribunal noted that the form had said that he would be arrested by the police and tortured on return to Taiwan. The Applicant said that he was not aware of that.
The Tribunal raised with the Applicant that it had some concerns about the debt claim because he was unable to provide detail about it, such as when it was taken out, and by whom, and what had happened with respect of it. In response, the Applicant said that since secondary school, he had been living outside of home and had seldom gone home. When he was [age] or [age], he lived with his dad for a period, but he was mostly living with friends. The Tribunal noted that that might explain his lack of detailed knowledge, but it also indicates that he largely has a separate life from his family and that things that might affect them, might not necessarily impact him. The Applicant said that he was not certain about that either. He emphasised that the attack on him after school had happened.
The Tribunal asked the Applicant why it was not until 2020 that he had made his protection visa application. He explained that at the beginning he had been trying the working holiday arrangement, and then he considered doing part time study while working and living with his aunt in Sydney. He hoped to, through those paths, find a way to stay in Australia, but after this did not work out, he had to turn his mind to a protection visa.
The Tribunal raised with the Applicant that his initial application had not included information about the attack on him. He said that he had not wanted to include that information. Asked why that was, the Applicant’s response alluded to it having been a traumatic incident that he does not like to discuss.
The Tribunal asked the Applicant what his father had thought about the incident given that, on his evidence, it happened because of the Applicant’s relationship with him. The Applicant said that after he had been attacked, his father had received a call from a friend [who] told him the incident was connected to him. Asked if his father had told him anything about why it had happened, the Applicant said that he did not ask him, and his father did not tell him; they did not see much of each other.
Asked what his father did with the gang, the Applicant said that they set up underground gambling facilities for casinos. He did not know if his father was still involved. He had not been in contact with him for quite some time.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or they are a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criteria
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.
Complementary protection criteria
If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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’).
A real risk (as with a real chance, per the refugee criteria) is one that is not remote or insubstantial or a far-fetched possibility.[1]
[1] Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. There is an intentional element to the meaning of cruel or inhuman and degrading treatment or punishment (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34).
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Sections 5(1) and 36(2A) and (2B) are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department).
The Tribunal’s mandatory considerations would also ordinarily also include country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, however there is no such report on Taiwan.
REASONS AND FINDINGS
The Tribunal records that having reviewed the Applicant’s identity documents and heard his oral evidence, it is satisfied as to his identity as a citizen of Taiwan. For the purposes of this protection eligibility assessment Taiwan is the ‘receiving country’, and the Applicant’s protection claims are assessed with regard to circumstances in Taiwan as these relate to him.

The issue in this case is whether, on account of his father’s profile and / or the Applicant’s involvement in an historical court case and / or a debt owed by family members to a loan shark, the Applicant is a person to whom Australia has protection obligations under s 36 of the Act and cl 866.221 of Schedule 2 to the Regulations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Findings of fact
The Applicant was insistent in his oral evidence that a significant incident of violence had happened to him when he was in school in Taiwan. However, he had not included reference to the incident in his protection visa application and he was not clear on when or why it had occurred. Notwithstanding these concerns, the Tribunal accepts that the Applicant was assaulted upon leaving the site of his high school and that this may have occurred because of issues relating to his father and/or is father’s work. The Applicant was relatively young when the incident occurred and accepts, as was his evidence, that many of the issues related to it, such as his medical care, immediate safety, and court proceedings were dealt with by his parents.
The Applicant’s evidence about his age when the incident happened was inconsistent. He said that it happened about three years before he finished school aged [age] or [age], and that he was about [age] or [age] when it happened. The Tribunal is prepared to accept that it occurred in or around 2009. The Tribunal is also prepared to accept that the incident occurred because of his father’s involvement in organised crime.
The Tribunal accepts that the Applicant’s parents took action against the perpetrators of the incident and that the matter was finalised soon after the assault. A court order was made that the perpetrators pay a form of compensation. After initially seeking to have the court enforce this, the family did not pursue payment as they were threatened and feared retaliation if they did so. The Applicant was not subsequently targeted.
The Applicant’s evidence with respect to whether he feared harm on account of loan sharks was inconsistent. Asked if he had concerns other than those stemming from the above incident, the Applicant said that he did not. When the Tribunal took the Applicant to the claims as made in his protection visa application form, he clarified that he did have concerns about loan sharks and had not understood that the earlier question might have related to an incident apart from the assault he experienced.
Asked about his concerns regarding debts, the Applicant was not sure who had taken out a debt, or what it was for or whether anything adverse had happened in respect of a debt. This was inconsistent with the information provided by the Applicant in his protection visa application form which spoke of threats to the family and to the Applicant, such that his family thought it necessary for him to leave the country. The Tribunal raised with the Applicant that his application form had included different details about what had happened because of a debt. The Tribunal noted, also, that the Applicant had claimed that on account of a loan shark debt, he would be tortured and detained by the police if returned to Taiwan. The Applicant said that he did not know about these consequences and did not maintain them.
The Tribunal is not satisfied that the Applicant or a member of the Applicant’s family has taken out a loan from a loan shark. The Act places certain obligations on applicants to provide sufficient evidence to establish their claims (section 5AAA) and it is established that, while an inquisitorial process, it is for an applicant to make their case.[2] The Applicant has provided insufficient details about this claim. On the evidence before it, the Tribunal is not satisfied that a loan has been taken out with a loan shark by a member of the Applicant’s family. Further, and owing to the internal inconsistencies in the Applicant’s evidence with respect to a loan shark debt and what happened on account of it, and his lack of knowledge about such a debt in general, the Tribunal does not accept that the adverse incidents set out in his protection visa application occurred. The Tribunal finds that the loan shark claim is not credible.
[2] SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 at [57].
Refugee criteria
Harm on account of father’s profile and/or past incident and court case
The Applicant did not seem to know much about his father. This is despite the Applicant having lived with him for a period and, on the Applicant’s evidence, his having been subjected to a serious assault by people seeking to target his father. The Tribunal has some difficulty accepting that someone in the Applicant’s position would know so little about his father but, and as set out above, accepts that the Applicant was assaulted when he was in high school, and is prepared to accept that this occurred because there were some points of contention between his father and others involved in organised crime at this time.
The Tribunal has accepted the Applicant’s evidence that after the incident the family went to the police and a court proceeding was commenced. The Applicant gave evidence that the perpetrators were required to pay TWD200,000.00. They did not do so and, on advice from the Applicant’s father and after being threatened, his mother decided not to pursue them for payment. The Applicant did not give evidence that he would agitate for the payment of any outstanding compensation. On the information before the Tribunal, it appears the parties consider the matter finalised.
After the incident, the Applicant remained in Taiwan for a further 6 or so years before leaving for Australia in 2016 because his mother, with whom he speaks weekly, thought he would have a better life. The Applicant has returned to Taiwan on two occasions, once for around 6 months. He stayed with a friend in Taipei during those trips. No adverse incidents took place.
The Tribunal does not accept that there is a real chance of harm to the Applicant on account of a violent incident he experienced during high school or because of the associated court proceedings or order, or because of his father’s involvement (past or ongoing) in organised crime. Evidence before the Tribunal does not indicate that the Applicant or any of his family members were subsequently targeted by people because of the father’s profile, or at all.
The Applicant changed schools after the incident and experienced no other incidents of violence. Once the court proceeding was finalised and recovery of a compensation payment was abandoned, the family received no threats from the perpetrators. The Applicant continued to live in Taipei. He was supported by his parents, and he worked in a [shop]. He does not know if his father remains involved in organised crime, having not had contact with him for some time. His parents and siblings remain in Taiwan and there is no evidence before the Tribunal that they have experienced any adverse attention from people who were or who remain in dispute with the Applicant’s father.
It has now been around 15 years since the violent incident and related matters occurred. The Applicant has returned to Taiwan and has lived and worked there independently of his family. The Tribunal finds that the Applicant would return to live in Taipei and that there is no real chance of him being seriously harmed in Taiwan, because of his father’s profile and/or the past incidents or for any other reason, now or in the reasonably foreseeable future.
Harm on account of debt with loan shark
Having considered all the information before it, the Tribunal does not accept that the Applicant and/or a member of his family have taken out a loan with a loan shark, or that they have faced any threats or acts of violence on account of such a loan. As such, the Tribunal is not satisfied that the Applicant would face a real chance of harm from loan sharks or corrupt associates in positions of authority such as within the police, on account of any such loan now or in the reasonably foreseeable future.
Considering the Applicants’ claims individually and cumulatively, the Tribunal finds that there is not a real chance he will suffer persecution now or in the reasonably foreseeable future in Taiwan.
For the reasons given above, the Tribunal is not satisfied that the Applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criteria
Having determined the Applicant does not face a real chance of experiencing serious harm under the refugee criteria, the Tribunal has considered his claims under the complementary protection regime.
Harm on account of father’s profile and/or past incident and court case
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[3]
[3] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
The Tribunal has found that the Applicant does not face a real chance of harm on account of his father’s profile as someone who is or was engaged in organised crime, or as someone who was previously involved in court proceedings against others. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Taiwan, there is a real risk[4] that he will suffer significant harm for these reasons in Taiwan.
Harm on account of debt with loan shark
[4] MIAC v SZQRB (2013) 210 FCR 505; Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
As noted above, the ‘real risk’ test has been held to impose the same standard as the ‘real chance’ test.[5] The Tribunal does not accept there is a real chance the Applicant will experience harm in Taiwan on account of any debt/s owed to loan sharks by members of his family. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm for this reason.
[5] MIAC v SZQRB (2013) 210 FCR 505
Considering the Applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm.
The Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under 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). 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 evidence before the Tribunal to suggest 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.
Hearing:   8 November 2024
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.
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36     Protection visas – criteria provided for by this Act
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(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.
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