2215540 (Refugee)
[2025] ARTA 1421
•25 March 2025
2215540 (REFUGEE) [2025] ARTA 1421 (25 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2215540
Tribunal:General Member C Stokes
Date:25 March 2025
Place:Adelaide
Decision:The Tribunal affirms the decision under review.
Statement made on 25 March 2025 at 10:21am
CATCHWORDS
REFUGEE – Protection Visa – Taiwan – race – indigenous Taiwanese ethnicity – threat of attack from China – victim of racial abuse – a potential war with, or invasion by, mainland China – not satisfied that the applicant faces a real risk of serious or significant harm – 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 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 then Minister for Home Affairs on 28 September 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 23 June 2022. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
On 22 October 2022, the applicant applied to the then Administrative Appeals Tribunal (AAT) for review. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
The applicant appeared before the Tribunal on 17 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or the ‘complementary protection’ criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
The applicant’s migration history
The applicant first arrived in Australia as the holder of a working holiday visa on [date] October 2011. She departed briefly and returned in March 2013 and departed again in October 2013. The applicant then returned on [date] April 2014 as the holder of a student visa. She departed in March 2017 and returned on [date] May 2017 as the holder of a different student visa. The applicant stayed in Australia until February 2019. Finally, she returned to Australia on [date] March 2019 as the holder of a further student visa which ceased on 5 September 2020. On 23 June 2022, after a period of being unlawful, the applicant applied for the protection visa.
Application to the Department
In the application to the Department, the applicant claimed she faced racism in Taiwan due to her indigenous Taiwanese ethnicity. She also claimed she will not be safe anywhere in Taiwan due to the threat of attack from China.
The applicant was not invited to an interview with the delegate.
On 28 September 2022, the delegate refused the application for the protection visa. After considering the country information in relation to the situation in Taiwan of its indigenous people, the delegate was satisfied that there are effective measures against discrimination which are effectively enforced by the authorities.
The delegate went on to find that there was no evidence to suggest that the applicant’s particular circumstances would lead her to face a greater risk of harm in Taiwan from a possible outbreak of war than the population of Taiwan generally: see s 36(2B)(c) of the Act. Therefore, the delegate was not satisfied that the situation as described by the applicant would amount to significant harm as defined in subsection 36(2A) of the Act.
The delegate concluded that the applicant is not a person in respect of whom Australia has protection obligations as provided for by s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant as provided for in s36(2)(b) or s36(2)(c) of the Act. Therefore, the applicant was found to not satisfy s36(2) of the Act.
Application to the Tribunal
The applicant applied to the then AAT on 22 October 2022. She provided a copy of the delegate’s decision and notification letter. She did not provide any additional information, claims or evidence with her application.
On 12 December 2024, the Tribunal sent the applicant a pre-hearing information form. On 7 January 2025, the applicant provided a response to the pre-hearing notification where she recited the same claims made in the protection visa application.
On 24 January 2025, the Tribunal invited the application to attend a hearing, scheduled for 17 March 20215.
At the hearing, the applicant gave evidence about her background, the racial discrimination she faced from a customer at her previous job at a [restaurant] in 2011 and her fears of harm if China were to invade Taiwan.
Country of reference: Republic of China (Taiwan)
The applicant claims to be a national of Taiwan and was assessed by the Department on that basis. She travelled to Australia on an apparently genuine Taiwanese passport. The Department file contains a copy of the passport along with a Taiwanese national identity card. I accept the applicant is a Taiwanese citizen and have assessed the applicant’s claims against Taiwan as the country of nationality and the receiving country.
Findings of fact
Based on the documentary evidence provided by the applicant to the Department and the Tribunal as well as her oral evidence to the Tribunal, I find and accept that:
a.the applicant is an indigenous Taiwanese female who was born and grew up in Hualien in Taiwan
b.she first came to Australia with a friend for a working holiday in 2011 at the age of [age], as she wanted to get life experience and a different perspective. She worked [doing specified work] and enjoyed it and decided to study and keep working in Australia. She initially studied a bridging course with a senior high school as her college qualification was not recognised and she was advised by an education agent to start a fresh. She then commenced some vocational education courses but she did not complete them and could not recall what they were
c.she has a mother, 3 sisters and a brother who live in Hualien in Taiwan. She has another sister who lives in [a country]. Her father passed away last year. She is very close with her family and remains in regular contact with them
d.she finished high school and then 2 years of college in Taiwan before working in the service industry - in [workplaces]. Her last job in Taiwan before coming to Australia was in a [restaurant] where she was subject to complaints from one customer on 2 or 3 occasions in June or July 2011. The customer called her huan-a which is a derogatory term for Aborigines, meaning uncivilised or primitive. She found this very upsetting and distressing. Her manager was very good to her and suggested she take some time off after this occurred. However, she found it too hard to continue due to these complaints and fear of seeing the customer again
e.she has had mental health issues since and while she has never formally consulted a psychologist, she has had discussions with a friend who has qualifications in psychology. These discussions helped at the time but has not helped her long term and she has not been able to access help in Australia due to the language barrier
f.she has never been threatened or harmed physically in Tawian due to her ethnicity or for any other reason
g.she is concerned about there being a war between Taiwan and China and the political situation is very sensitive and concerning, particularly since the war in Ukraine broke out which brought home to her and the people of Taiwan that China’s threats may be acted upon at any time
h.if she were to return to Taiwan she fears she will find it very difficult to find a job given her age and the only jobs that will be available to her are in the service industry where she will be at risk of being discriminated against.
Does the applicant satisfy the refugee criterion for protection?
Claims regarding discrimination due to her ethnicity, the impact on her mental health and her ability to work in Taiwan
I am not satisfied there is a real chance of serious harm if the applicant were returned to Taiwan in the reasonably foreseeable future due to her ethnicity.
While I accept that she has been the victim of racial abuse by one customer in 2011 on 2 or 3 occasions, and that was distressing for her, the applicant has not claimed to have suffered any other discrimination or ill-treatment due her ethnicity in previous workplaces or in her daily life. Further, as discussed with the applicant at the hearing, the country information acknowledges there continues to be inequality in Taiwan but it also reports that government programs promote indigenous interests. There is no suggestion in the country information that indigenous Taiwanese people face any significant societal or official discrimination.[1] At the hearing the applicant accepted this was the case.
[1] BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p 22; 'Country Reports on Human Rights Practices for 2022 - Taiwan', US Department of State, 20 March 2023, p 10-11
Based on the country information, and the applicant’s evidence of her experiences, I do not consider there is a real chance of the applicant facing serious harm now or in the reasonably foreseeable future on return to Taiwan due to her ethnicity. Being the subject of a 2 or 3 incidents of racial slurs does not meet the non-exhaustive definition of serious harm in
s 5J(5) of the Act. While distressing for her and while I accept it has contributed to some mental health issues and there is the possibility of her facing such complaints again in the future, her life or liberty has not been threatened, she has not been physically harassed or physically ill-treated, she has not been denied access to basic services and her capacity to subsist has not been threatened - in fact her employer encouraged her to take leave and return to work after the incidents. Further, I do not accept that she has been so affected by the complaints that it has, or could in the reasonably foreseeable future, cause her serious mental harm. I also do not consider the complaints she faced and may again face in the future to be so oppressive that one cannot be expected to tolerate it.[2][2] MIMA v S152/2003 (2004) 222 CLR 1
I accept the applicant may not wish to work in the service industry due to the complaints made about her in 2011 and may face some anxiety about returning to that industry as she fears similar racially motivated complaints will be made about her. However, she gave evidence that she has worked for many years in Australia in various jobs [and] I find that she would be able to find similar employment in Taiwan. She also gave evidence that she is close to her family, and I consider they would be able to offer support such as accommodation on her return. I therefore do not accept that she will be unable to find work or access accommodation such that her capacity to subsist would be threatened.
For the above reasons, I am not satisfied that the there is a real chance the applicant will be persecuted in the reasonably foreseeable future in Taiwan, because of her ethnicity and/or her mental health.
Claims regarding a potential war with, or invasion by, mainland China
Taiwan is an island that has for all practical purposes been independent since 1950, but which China regards as a rebel region that must be reunited with the mainland (known as the ‘one-China policy’). In January 2024, pro-sovereignty candidate Lai Ching-te was elected president of Taiwan. It was the third presidential election victory for the pro-sovereignty Democratic Progressive Party. This angered the Chinese government in Beijing, which issued a statement after the results insisting that "Taiwan is part of China". While Beijing has called for "peaceful reunification", it has also not ruled out the use of force. In his first remarks President Lai stated "the country will continue to walk on the right path forward. We will not turn around or look backwards". President Lai also had a message for China and said he favoured more exchanges and dialogue over obstructionism and conflict, and called for peace and stability with Beijing. At the same time, he added, he would "maintain the cross-strait status quo" - neither seeking independence nor unification with China - and pledged to "safeguard Taiwan from threats from China".[3]
[3] Taiwan country profile, BBC News, 15 January 2024
On 13 March 2025, President Lai convened a high-level national security meeting, following which he held a press conference. In remarks, President Lai introduced 17 major strategies to respond to five major national security and united front threats Taiwan now faces from China. He stated that “By its actions, China already satisfies the definition of a “foreign hostile force” as provided in the Anti-Infiltration Act. We have no choice but to take even more proactive measures, which is my purpose in convening this high-level national security meeting today. It is time we adopt proper preventive measures, enhance our democratic resilience and national security, and protect our cherished free and democratic way of life.”[4]
[4] President Lai holds press conference following high-level national security meeting-, News releases, Office of the President Republic of China(Taiwan), 13 March 2025
Country information indicates that China engages in military drills around Taiwan and the Taiwan strait every 7 to 10 days on average – most recently sending more than 50 warplanes in a military exercise to areas surrounding Taiwan on 17 March 2025. A spokesperson from China's Taiwan Affairs Office (TAO) said the military drill was "punishment" for Taiwanese President Lai’s continued promotion of "separatism".[5]
[5] China sends more than 50 war planes near Taiwan as 'punishment' to separatism, ABC News, 18 March 2025
The US Department of State website, which was last updated on 13 February 2025 following the inauguration of President Donald Trump, acknowledges the ‘one-China policy’ but notes that:
We continue to have an abiding interest in peace and stability across the Taiwan Strait. We oppose any unilateral changes to the status quo from either side. We expect cross-Strait differences to be resolved by peaceful means, free from coercion, in a manner acceptable to the people on both sides of the Strait. Consistent with the Taiwan Relations Act, the United States makes available defense articles and services as necessary to enable Taiwan to maintain a sufficient self-defense capability – and maintains the capacity to resist any resort to force or other forms of coercion that would jeopardize the security, or the social or economic system, of the people on Taiwan.[6]
[6] U.S. Relations With Taiwan, United States Department of State, 13 February 2025
Notably, on 13 February 2025 the US Department of State website removed the phrase "we do not support Taiwan independence", added a reference to Taiwan's cooperation with a Pentagon technology and semiconductor development project and says the US will support Taiwan's membership in international organisations "where applicable". Further, between 10 and 12 February 2025 the first US Navy ships sailed through the sensitive Taiwan Strait since President Trump's inauguration.[7]
[7] US drops website wording on not supporting Taiwan independence, ABC News, 17 February 2025
Experts and analysts do not have a definite answer on if, or, when, and what type of action China will take on Taiwan. Some consider there remains a slight chance that reunification will be achieved peacefully, and others consider a full scale invasion is more likely or, at least some kind of limited conflict such as a blockade that disrupts Taiwan and prevents normal economic, supply chain, and communications operations, with the intent of isolating the island.[8] In March 2024, the top US military commander in the Indo-Pacific said that Beijing is maintaining its goal of being able to invade Taiwan by 2027. That year is seen as "magical" because it marks the centenary of what was to become the People's Liberation Army (PLA). "Others believe 2049 is a critical date," as China's President Xi Jinping has "emphasised that unification with Taiwan is essential to achieving what he calls the Chinese Dream, which sees China's great-power status restored by 2049". Invading Taiwan by sea has, until now, been considered too difficult and costly for China due to environmental factors and the risk of "escalation between two nuclear powers", namely the US and China. However, whether President Trump will in fact support Taiwan in any invasion is far from clear given he has pledged not to get involved in foreign wars.[9]
[8] Will China Invade Taiwan? A Potential Timeline for Conflict, Global Digest: Traveler Security, Global Guardian, 2 January 2025
[9] Will China invade Taiwan?,The Week, 17 January 2025
Reports indicate that the majority of the Taiwanese population favour democracy, and, either support independence or wish to maintain the status quo. The majority does not support formal reunification with China.[10] In China, popular support for a war to reunify Taiwan is unclear.[11]
[10] Special Report: Taiwanese Preferences on Taiwan’s Political Future, Taiwan Public Opinion Foundation, 14 February 2025
[11] Chinese Public Opinion Is More Divided on Taiwan Than It Seems, Foreign Policy, 21 March 2024
I note that the Australian Smart Traveller advice is to ‘exercise normal safety precautions.’ It does not advise Australians to reconsider their need to travel to Taiwan, to not travel there at all, or to leave the country.[12]
[12] Taiwan Travel Advice & Safety, Smartraveller, 27 February 2025
I briefly discussed the country information referred to above with the applicant at the hearing and provided the applicant 7 days to provide any submissions or country information to the Tribunal that she wished to rely on. The applicant did not do so.
Based on the country information and evidence before the Tribunal, I accept that the situation with China and Taiwan is sensitive and the question as to whether any action will be taken by China to reunify with Taiwan is uncertain. What is apparent is that China has to date not launched a full-scale military invasion to take Taiwan by force, nor has it taken other conflict actions such as a blockade. It is also currently considered by the Australian government to be a safe place to travel to. Whether an invasion or limited conflict is launched, is contingent upon a number of factors including: public support for reunification in China and Taiwan, the miliary capability of China and environmental factors limiting that capability, the military capability of Taiwan and its allies, the position taken by President Trump as well as major economic considerations. While the expert analysis is varied, I accept the persuasive opinions of the experts that it would be extremely risky for China to launch an invasion, as such a move could draw the US into the conflict and could be very costly for China.
I need to consider if there is a real chance of the applicant facing persecution in the reasonably foreseeable future. A ‘real chance’ of persecution is one that is substantial and not remote or far-fetched.[13] A fear of persecution is not well-founded if it is merely assumed or is mere speculation.[14] In my view, an invasion of Taiwan by the mainland, as well as the consequence of reunification are entirely speculative. I do not accept on the information presently before me that reunification by force or otherwise is imminent or likely in the reasonably foreseeable future.
[13] Chan v MIEA (1989) 169 CLR 379 at 389
[14] MIEA v Guo (1997) 191 CLR 559 at 572
For the above reasons, I am not satisfied that the there is a real chance the applicant will be persecuted in the reasonably foreseeable future in Taiwan, because of a war with or invasion by mainland China.
Refugee assessment
For the above reasons, I am not satisfied that the applicant meets the refugee criterion in s 36(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).
Claims regarding discrimination due to her ethnicity and the impact on her mental health
I have considered whether the applicant’s claims regarding the complaints made about her in 2011, which she may face again in the future, as well as the impact that has had/may have in the future on her mental health amounts to significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she 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. The definitions in s 5(1) of the Act require there to be intentional or deliberate acts or omissions causing the harm. The definition of ‘cruel or inhuman treatment or punishment’ also requires the pain or suffering to be ‘severe’ or intentionally inflicted on a person for so long that it could reasonably regarded as cruel or inhuman in nature. Finally, the definition of ‘degrading treatment’ requires ‘extreme humiliation’.
While the racial slurs directed to her in the past, and, may be directed to her in the future, as well as the impact that has had or may have on her mental health, may be considered cruel, inhuman or degrading, I do not accept there is the required element of intent. I also do not consider it to be so severe or sustained that it meets the definition of ‘cruel or inhuman treatment or punishment’. Finally, I do not consider it to be extreme such that it meets the definition of ‘degrading treatment’. Accordingly, I am not satisfied that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of her removal from Australia to Taiwan by reason of her ethnicity and/or her mental health.
Claims regarding a potential war with, or invasion by, mainland China
The ‘real risk’ test as it applies to the complementary protection criterion imposes the same standard as the ‘real chance’ test in the refugee criterion.[15] For the same reasons given above in relation the refugee criterion regarding the claims regarding a possible war with or invasion by mainland China, I am not satisfied that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of her removal from Australia to Taiwan.
Complementary protection assessment
[15] MIAC v SZQRB (2013) 210 FCR 505
For the above reasons, I am not satisfied that the applicant meets the complementary protection criterion in s 36(2)(a)(a).
Conclusion
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (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.
Date of hearing: 17 March 2025
Representative of the applicant: N/A
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.
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