2203569 (Refugee)
[2025] ARTA 1733
•21 July 2025
2203569 (REFUGEE) [2025] ARTA 1733 (21 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2203569
Tribunal:General Member K McGrath
Date:21 July 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 21 July 2025 at 3:18pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – reported factory’s pollution to manager and intended to report to government – attacked, threatened and monitored by gangsters associated with factory – police inaction – family relocated – claims almost identical to two previous unrelated applications – incomplete, inconsistent and implausible claims and evidence – continued work at factory – delay in applying for protection – applied after return visit, expiration of substantive visa and period on bridging visa – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 359A
Migration Regulations 1994 (Cth), Schedule 2Any 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 9 March 2022, 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 the Republic of China (Taiwan), applied for the visa on 17 April 2021.
The applicant appeared before the Tribunal on 10 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant was born in Kaohsiung City, Taiwan on [Date]. He first arrived in Australia [in] March 2019 on a subclass 417 working holiday visa. He then departed [in] January 2020.
The applicant returned to Australia [in] February 2020 and has been in Australia since this date. On 28 February 2020, the applicant was granted a bridging visa. On 16 March 2020, his subclass 417 visa expired.
Evidence before the Department
The applicant applied for a protection visa on 17 April 2021. The applicant’s protection visa application sets out that he worked in a privately-owned factory located near the water. The factory was responsible for locals suffering from cancer, and lots of locals died from this. The applicant’s own health condition was getting worse. He spoke to the manager about this. The manager threatened that, if the applicant reported this at a higher level, the applicant would be in trouble.
The applicant decided that he should report this to the government. On his way, he was prevented by some gangsters. He was kicked and told that they would kill him if he continued to report this. The gangsters also came to his home and smashed the windows and scolded him. He was often threatened and kicked by gangsters. His body was badly hurt.
Nobody protected him. He reported this to the police but there was no result at all. He tried to move but was watched by gangsters and found by the gangsters. He decided to leave Taiwan and start a new life in Australia.
The applicant fears that he will be kicked, threatened, killed or tortured by gangsters, associated with the factory where he was employed, if he returns to Taiwan. He does not believe that the government will protect him as the head of the factor is powerful and is connect with the local authorities. The authorities get profits from the factory. He cannot safely relocate as the gangsters have a wide network and he will be found by them no matter where he relocates.
The bio-data page of the applicant’s passport was submitted to the delegate of the Minister. The applicant was not invited to an interview by the delegate. On 9 March 2022, the delegate refused to grant the applicant a protection visa.
Evidence before the Tribunal
The applicant applied to the Administrative Appeals Tribunal (AAT) on 14 March 2022.
On 14 October 2024, the 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), 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.
Oral evidence was given by the applicant at his hearing on 10 July 2025. The applicant maintained the claims set out in his protection visa application. He stated that he feared that his life may be in danger, that he may be killed, kidnapped, taken to Myanmar or Thailand, subjected to cruelty or his family may be harmed, or their lives put at risk by gangsters associated with the factory. At hearing, the Tribunal sighted the applicant’s new passport, issued in [2022].
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, 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 in this case is whether the applicant’s claims that he may be harmed by gangsters associated with the factory where he was employed are credible. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving country
The Tribunal finds that the applicant is a national of Taiwan as the Tribunal has sighted his current, original passport. In addition, the applicant has consistently maintained that he is a national of Taiwan and there is no evidence before the Tribunal that suggests that he may not be a national of Taiwan. Accordingly, the Tribunal will assess this application with reference to Taiwan as both the country of the applicant’s nationality and the receiving country.
Harm by gangsters associated with the factory where he was employed
For the reasons outlined below, the Tribunal does not accept the credibility of the applicant’s claims.
Claims almost identical to those previously provided to the delegate
The applicant lodged his application in 2021. In 2020, two protection visa applications were lodged with the delegate in almost identical words. Nineteen of the twenty-three sentences in the applicant’s application are identical in every respect, including in errors of syntax, to those other two applications. The details of the applicants’ claims (as set out above) are identical with two exceptions; one, that this applicant states that he worked in a private factory, while the other two applicants state that they worked in a state-owned factory and two, that this applicant states that he made a police report but nothing happened. The two other applications do not refer to any report to the police.
At hearing, the Tribunal gave the applicant clear particulars of the above. The Tribunal informed the applicant that it had access to two other protection visa applications, that were in almost identical words to his own application. The applicant was informed that both applications were lodged by Taiwanese nationals, and both in 2020, before the applicants’ own application. Extracts that were in identical words to that of the applicant’s application were read to the applicant at hearing.
The Tribunal explained to the applicant that this information was being provided to him pursuant to section 359A of the Migration Act 1958 (Cth). The Tribunal explained that the information may indicate that what he was saying about his individual circumstances was not credible. If so, this would be the reason, or part of the reason, for affirming the decision under review.
The applicant was invited to comment orally at hearing. He responded that he did not know what to say and that he respected the decision of the Tribunal. The Tribunal responded that no decision had been made on his application and provided the applicant with seven days to provide any further comment in writing to the Tribunal. The applicant did not provide any response within that seven days.
The Tribunal considers that these two, almost identical, protection visa applications, lodged by Taiwanese nationals in the year prior to the applicant’s own application, weighs heavily against the credibility of the claims set out in the applicant’s protection visa application and his evidence generally. It is significant that those claims included a level of detail that could not plausibly apply to multiple applicants and that the applicant maintained these claims at hearing.
Inconsistencies and omissions
In addition, the applicant’s evidence was inconsistent, with omissions that went to the core of his claims, in relation to the type and frequency of harm he experienced in Taiwan.
The applicant’s protection visa application set out that the applicant was kicked many times. The applicant’s oral evidence was that he was not kicked but hit with a chair, losing seven teeth. The applicant explained this inconsistency by stating that the translation software that he used for his protection application may not have translated correctly.
His oral evidence, which he provided and then confirmed, was initially that he was harmed once, not many times. When the inconsistency was put to him, he then stated that he was pushed. This was a further inconsistency, which the applicant explained on the basis that he was not harmed when they pushed him, it did not hurt him.
Similarly, the applicant omitted key information at hearing about harm he claimed to experience. His protection visa application sets out that gangsters threatened to kill him and also came to his home and smashed his windows.
The applicant did not provide any of that information at hearing, until prompted by the Tribunal with extracts from his application. This was despite being directly asked if he was threatened with anything else. The applicant’s explanation for not stating, at hearing and in response to this question, that gangsters had threatened to kill him, was that it was just threatening, and the gangster would not really kill him. The Tribunal does not find this to be a persuasive explanation for not responding to a direct question about whether he was threatened with anything else.
Similarly, the applicant omitted to give evidence about his windows being smashed until prompted with extracts from his application. His explanation for this was that he thought that property damage was not as bad as physical injuries. The Tribunal does not find this explanation to be persuasive as the applicant had described being followed, verbally challenged and being hit by a chair, only one of which related to physical injuries.
Finally, the applicant appeared to be unable to give evidence about when he was hit with a chair and lost seven teeth. The applicant was twice asked by the Tribunal when this occurred. The applicant responded that he did not know. The Tribunal asked why he did not know. Both times, the applicant’s explanation was that he was knocked unconscious. Only when the applicant was asked a third time, did he provide a general timeframe for the event. The Tribunal does not find the applicant’s explanation for not knowing when this occurred to be cogent. The Tribunal is of the view that the applicant should have been able to give a general timeframe for this critical event without being asked three times, given the claimed significance and severity of the attack. The Tribunal finds the evidence to be implausible.
There were a number of other significant inconsistencies and omissions in the applicant’s evidence.
The Tribunal expressed its concerns about inconsistencies and omissions in the applicant’s account to the applicant at hearing, explained the significance of these concerns, and invited the applicant’s comment. The applicant declined to do so.
The Tribunal does not accept that the applicant’s explanations adequately explain the frequency and significance of these inconsistencies and omissions. The Tribunal finds that these inconsistencies and omissions, which relate to core aspects of the applicant’s claim, undermine the credibility of the applicant’s claims that he raised concerns about health hazards posed by the factory where he used to work and was harmed by gangsters as a result.
Implausible evidence
Further, key aspects of the applicant’s evidence are implausible. First, it is not plausible that the applicant would be targeted by gangsters given the applicant’s evidence that he did not have any specific, incriminating evidence in relation to the factory. The applicant specifically stated at hearing that he was just an ordinary person, and he did not know much. His knowledge was limited to be able to see pipes that ran from the factory to the water. These pipes were widely visible. Contamination by the factory had been previously covered in the news. The Tribunal does not find it to be plausible that applicant would be targeted for attempting to report information that was widely visible to many.
Second, it is not plausible that the applicant continued working at the factory after he claimed to have been threatened and harmed by gangsters and after his family fled to Taipei for this reason. The applicant’s evidence is that he was targeted by gangsters associated with the factory one year after 2017, when he starting to work in the factory. His evidence is then that his family moved to Taipei in 2018 because of their fears arising from the gangsters and that the applicant joined them six to twelve months later. He continued working at the factory until January 2019.
The applicant provided various explanations for why he continued to work at the factory. The Tribunal found these explanations to be unclear and inconsistent with each other. The Tribunal found that the applicant was unable to persuasively answer clarifying questions about any of the explanations. For these reasons, the Tribunal does not accept any of the applicant’s explanation for why he continued to work at the factory. The Tribunal finds that his continued work at the factory, after he claimed to have been threatened and harmed by gangsters associated with the factory, and after his family fled from those gangsters, is implausible.
Similarly, the Tribunal does not find it plausible that the applicant would tell colleagues at his workplace that his family had moved to Taipei if the reason that they moved to Taipei was to hide from gangster’s associated with his colleagues’ employer. When this was put to the applicant, he explained that the colleague was his good friend, and he did not tell his colleague about what was happening between the applicant and his manager or why his family moved. This explanation does not overcome the Tribunal’s concern. Relocating an entire family is a large undertaking. If this had been done, as claimed, to escape harm from gangsters associated with the applicant’s employer, it is not plausible that the applicant would expose his family’s whereabout to someone within his workplace, potentially threatening their safety and undermining the purpose of their relocation.
The Tribunal expressed its concerns about the plausibility of the applicant’s account at hearing and invited the applicant’s comment. He declined to do so.
The Tribunal find that the implausible nature of significant elements of the applicant’s account undermine the credibility of that account.
Claims not lodged until after the applicant had been in Australia, including most recently on a non-substantive visa, for a significant period of time
The Tribunal gives some weight to the applicant’s delay in providing these claims. The applicant did not make his protection visa application until over two years after he arrived in Australia. When he did make his application, it was over one year after his substantive visa expired.
This travel and visa history was raised with the applicant during the hearing. The applicant responded that he did not know about this type of visa until his friend told him in early 2020. The Tribunal then raised with the applicant that he did not, then, lodge a protection visa until April 2021. The applicant explained that he was hesitating because he thought that, if he applied for a protection visa, he would not be able to return to Taiwan and he wanted to be able to do so because he was worried about his family’s safety. Given the Tribunal’s significant concerns about the credibility of the applicant’s evidence arising from him maintaining claims duplicated across multiple applications prior to the applicants, the Tribunal is not prepared to accept this explanation.
The applicant’s Movement Record was raised with the applicant. The Tribunal explained to the applicant that this information was being provided to him pursuant to section 359A of the Migration Act 1958 (Cth). Clear particulars of the relevant dates were read to the applicant from his Movement Record. The applicant was informed that these dates came from Australian government records including from arrivals and departures at the airport. The applicant was informed that this was relevant to the review because delay in applying for protection may suggest that the information he had provided about the harm he experienced in Taiwan and what he fears on return are not credible. If so, this would mean that he did not meet the criteria for the grant of the visa that he had applied for and this would be the reason, or part of the reason, that the Tribunal affirms the decision under review The applicant was invited to comment orally. He stated that he did not know what to say. When asked if he wanted to say anything, he confirmed that he did not. He was provided with seven days following the hearing to provide any comment. He did not provide any response during that time.
The Tribunal gives some weight to this delay as an indication that the applicant does not hold genuine fears relating to gangsters associated with the factory because, if he did, he could have been expected to have made those claims sooner after arriving in Australia and while still holding a substantive visa.
Considered as a whole, the Tribunal does not accept that the applicant’s claims relating to the factory and gangsters associated with the factory to be credible. This is because these claims were almost identical to those submitted by others, prior to the applicant. In addition, there were multiple inconsistencies and omissions in the applicant’s evidence that went to the core of his claims. Further, key aspects of his evidence was implausible. Finally, he did not raise his claims until after he had been in Australia for a significant period of time, including most recently on a non-substantive visa and with knowledge that protection visa applications were available to those fearing harm on return to their country of origin.
Findings of fact
For the reasons set out above, the Tribunal does not find the applicant’s claims relating to the gangsters associated with the factory to be credible.
Accordingly, the Tribunal finds that:
a.The applicant did not work in a privately owned factory and did not have a health condition, or any symptoms associated with this work,
b.That the factory did not discharge waste water at night and was not responsible for local residents contracting cancer or dying,
c.That the applicant did not make any report against the factory to the manager of that factory, the police, or the government either while he was in Taiwan or Australia,
d.That he was not threatened by the manager of the factory,
e.That he was not kicked, scolded, hit with a chair, knocked unconscious, verbally challenged, pushed, threatened in any way, or followed by gangsters associated with the factory where he was employed. The gangsters did not come to his home and smash his windows. His body was not badly hurt.
f.He did not make any report to the police about the words and actions of the gangsters associated with the factory where he was employed,
g.He did not relocate to Taipei or any other place in Taiwan. He was not watched and found by the gangsters in Taipei or any other place,
h.His family did not relocate to Taipei. His manager at the factory does not know his family’s location. His mother has not heard that the gangster are looking from them. His family has not been contacted or targeted in any way by the gangsters,
i.The applicant would not take any steps to report the factory on return to Taiwan.
Does the applicant satisfy the refugee criterion for protection?
The applicant claims that he would be harmed by gangsters associated with the factory on return to Taiwan because he has raised concerns about health hazards posed by the factory where he used to work. As set above, the Tribunal finds that this claim is not credible. Accordingly, the Tribunal is not satisfied that the applicant faces any chance of any harm on the basis of this claim. Further, the Tribunal finds that the applicant does not face a real chance of serious harm on this basis of this claim. The applicant has made no further claims for protection.
The Tribunal finds that the applicant does not have a well-founded fear of persecution for this, or any other, reason and is not a refugee as defined in s 5H(1) of the Act. He does not meet the criteria set out in s36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
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). As set out above, the applicant’s sole claim for protection is that he raised concerns about health hazards posed by the factory where he used to work. The Tribunal finds that this claim is not credible and that the applicant does not face any risk of any harm on the basis of this claim. Accordingly, the Tribunal is not satisfied that the applicant will face a real risk of significant harm in Taiwan on this basis. He does not meet the criteria in s36(2)(aa).
CONCLUDING PARAGRAPHS
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 suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…
0
0
0