2422155 (Refugee)
[2025] ARTA 2099
•15 September 2025
2422155 (REFUGEE) [2025] ARTA 2099 (15 SEPTEMBER 2025)
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2422155
Tribunal:General Member C Stokes
Place:Adelaide
Date:15 September 2025
CORRIGENDUM
Date of Corrigendum: 14 October 2025
Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alteration is made to the statement of reasons for the decision:
The decision at paragraph [31] is altered to read:
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 her passport. I accept the applicant is a Taiwanese citizen and have assessed the claims against Taiwan as the country of nationality and the receiving country.
Statement made on 14 October 2025 at 11:30am
Decision and Reasons for Decision
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2422155
Tribunal: General Member C Stokes
Date: 15 September 2025
Place: Adelaide
Decision: The Tribunal affirms the decision under review.
Statement made on 15 September 2025 at 4:09pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – decision on the papers – clear and unambiguous request – issues for determination readily identifiable – fears potential war between Taiwan and mainland China – no further information or evidence provided – entirely speculative – US likely to support Taiwan – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155Any 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.
In accordance with s 369 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.
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 29 June 2024 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 30 August 2022. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person in respect of whom Australia has protection obligations.
On 10 July 2024, 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.
On 26 June 2025, the Tribunal invited the applicant to attend an in person hearing scheduled on 29 July 2025. The applicant did not appear but when contacted by the Tribunal she answered her telephone. The Tribunal therefore conducted a telephone directions hearing where she confirmed she did not receive the hearing invitation and that she wanted to proceed with her application. The applicant also confirmed her email address that the Tribunal had recorded for her was her current email address. The Tribunal explained to the applicant that the hearing was going to be rescheduled, it was important that she check her emails for information about the hearing and that she needs to respond to the hearing invitation. Shortly after the directions hearing the Tribunal rescheduled the hearing to 4 September 2025 and the applicant was emailed a hearing invitation in relation to that hearing. However, the Tribunal later received a bounce back to that email.
On 1 August 2025, the applicant notified the Tribunal of updated contact details, and the Tribunal later that day re-sent the hearing invitation to her new email address. On 26 August 2025, the applicant responded to that hearing invitation by returning the ‘Response to hearing notice’ form in which she requested that the Tribunal make a decision on the papers.
There are two issues for determination. The first is whether it is appropriate for me to determine the application in the applicant’s absence and without holding a hearing. If, having determined it is appropriate to determine the application, the second issue 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 it appropriate to determine the application without a hearing and that the decision under review should be affirmed.
BACKGROUND
Evidence before the Department
In the applicant’s protection visa application lodged on 29 June 2024 the applicant claimed to fear that war might happen between the mainland and Taiwan.
On 30 August 2022, the applicant was sent an acknowledgement of valid application correspondence which advised her she could provide additional information relating to her claims and how she could provide this. The correspondence also informed the applicant that
the decision on her application could be made without another opportunity for her to present any further information.
The applicant was not interviewed by the delegate and did not provide any supporting evidence other than a copy of her passport.
The delegate was not satisfied that, if the applicant returned to Taiwan, she will be persecuted for one or more of the reasons in s5J(1)(a) of the Act. The delegate was also not satisfied that any harm the applicant may experience due to a possible future war between mainland China and Taiwan would amount to a personal or targeted risk under s36(2B)(c) of the Act.
Evidence before the Tribunal
On 10 July 2024, the applicant applied for review of the delegate’s decision. She attached to her application for review a copy of the delegate’s decision and the letter notifying her of that decision. She did not provide any further evidence to the Tribunal.
On 13 July 2024, the then AAT wrote to the applicant acknowledging the application and noting that it the applicant wished to provide material or written arguments for the AAT to consider, she should do so as soon as possible.
As set out above, on 26 June 2025 the applicant was sent an invitation to a hearing scheduled to take place on 29 July 2025. On 29 July 2025, the applicant was sent a further hearing invitation to a hearing scheduled to take place on 4 September 2025. In each invitation it was explained to the applicant that:
What if I want the Tribunal to make a decision without holding a hearing
You can use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without a hearing. However, you may still be required to attend the hearing if the Tribunal is unable to determine the issues in your absence. If you request the Tribunal to make a decision without a hearing, and we still require you to attend, we will inform you of this before the hearing date.
Please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision.
On 26 August 2025, the applicant emailed the Tribunal the ‘Response to hearing notice’ indicating that she would not attend the hearing and requested a decision on the papers. Further, the covering email noted:
Please refer to the attached file. I do not want to attend the hearing. Could you please make the decision on the papers?
Also on 26 August 2025, the Tribunal wrote to the applicant as follows:
Dear [the applicant]
I refer to your email dated 26 August 2025 in relation to your application for review.
The Tribunal understands from your email you have requested that the matter be determined on the papers without holding a hearing. The Tribunal Member is only able to do that if satisfied that the issues for determination in the proceeding can be adequately determined on the evidence available to them: see s 106(3) of the Administrative Review Tribunal Act 2024 (Cth).
The relevant evidence available to the Tribunal includes your passport, your protection visa claims and the and the delegate’s decision refusing the protection visa. To assist the Tribunal in considering whether the issues for determination can be adequately determined on that evidence, please can you advise whether you have any further information you wish to provide. Please provide a response by Wednesday 10 September 2025.
Please note that if the Tribunal proceeds to make a decision without a hearing, because it considers the issues can be determined without a hearing, this does not guarantee you will receive a favourable decision. The Tribunal may also consider your application on a different basis to which the delegate of the department refused your visa, including with respect to whether there is a real chance you will face serious harm due to the possibility of a war between China and Taiwan.
If you would in fact like the hearing to proceed on 4 September 2025 please let us know as soon as possible, and no later than Friday 29 August 2025, so that the Tribunal can ensure the hearing arrangements remain in place.
If you have any questions, please email [email protected], or telephone our national enquiry line on 1800 228 333.
The applicant did not respond, and the hearing was subsequently cancelled. On 1 September 2025 the Tribunal wrote to the applicant as follows:
Dear [the applicant],
The Tribunal advises that the hearing scheduled for 4 September 2025 at 10:00am has been cancelled, and we will wait for a response to our email dated 26 August 2025. You have until 10 September 2025 to reply, before the Tribunal proceeds to make a decision on the papers.
REASONS AND FINDINGS
Decision without a hearing
For the reasons that follow, the Tribunal has decided to make a decision without a hearing.
Section 106 of the Administrative Review Tribunal Act 2024 (ART Act) outlines the circumstances in which the Tribunal may make a decision without a hearing. Namely, the Tribunal can reach a decision without holding a hearing when the applicant requests this (see s 106(3)(b)(ii)) and it appears to the Tribunal that the issues for determination in
the proceeding can be adequately determined in the absence of the parties to the proceeding (see s 106(3)(c)).
These provisions were considered by the President and two Deputy Presidents of the Tribunal in the case of 2010120 (Refugee) [2025] ARTA 550. I am guided by their decision, and also that of the Federal Circuit and Family Court of Australia in EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 at [59] and [60] and in LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227 at [70]-[77], [83], [87] and [90].
As set out above, the applicant requested on 26 August 2025 that the Tribunal make a decision on the papers via the ‘Response to hearing notice’ which she submitted from her email address which included a covering email reiterating the request. I am satisfied that the applicant has made a clear and unambiguous request, and consents to, the Tribunal making its decision without holding the hearing of the proceeding.
I must also consider that the issues for determination in the proceedings can be adequately determined in the applicant’s absence. In this case, the issues for determination are readily
identifiable.1 They are whether the applicant is 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: s 36(2) of the Act. In particular, whether the applicant’s claims to fear harm due to a potential war with China meet the ‘refugee’ or ‘complementary protection’ criteria.2
I am satisfied that the issues for determination, can be adequately determined in the applicant’s absence in this case. The Tribunal has a copy of the Department’s file which includes a copy of the applicant’s Taiwanese passport and her protection visa application form, which contains the applicant’s biographical information and the claims for protection. Further, the applicant provided the Tribunal with a copy of the delegate’s decision with her review application. As outlined above, the applicant has been provided with multiple opportunities by the Department and Tribunal to provide further evidence and information as to her claims. Despite being offered those opportunities, and the Tribunal informing the applicant that there was no guarantee of a favourable decision on the papers as well as that the Tribunal may consider the application on a different basis to which the delegate of the department refused the visa, the applicant has made it clear that she has no further information or evidence to provide the Tribunal and has made it clear she does not wish to attend a hearing.
On the information before me, I can be satisfied as to the applicant’s identity, determine her receiving country and form conclusions as to whether the applicant’s claims meet the ‘refugee’ or ‘complementary protection’ criteria. I am therefore satisfied in the circumstances that the issues for determination in the proceeding can be adequately determined, in the absence of the parties to the proceeding, on the evidence available to the Tribunal. I am also satisfied that the applicant has been fairly put on notice that the question as to whether there is a real chance she will face harm due to the possibility of a war between China and Taiwan remained in issue.
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
1 2010120 (Refugee) [2025] ARTA 550 at [42]-[43]
2 LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227 at [87]
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
Country of reference: Taiwan
The applicant claims to be a national of Malaysia and was assessed by the Department on that basis. She travelled to Australia on an apparently genuine Malaysian passport. The Department file contains a copy of her passport. I accept the applicant is a Malaysian citizen and have assessed the claims against Malaysia as the country of nationality and the receiving country.
Claims for protection
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.3
I accept that the applicant has a genuine fear of a war breaking out between the mainland and Taiwan and that she may be harmed in such a war. However, I need to consider
3 MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70
whether there is in fact a real chance of her suffering serious harm or a real risk of significant harm in the reasonably foreseeable future.
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".4
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.”5
Country information indicates that China engages in military drills around Taiwan and the Taiwan strait every 7 to 10 days on average – 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".6 Following that drill, between 1 and 2 April, Chinese aircraft crossed the median line and Chinese naval forces and coast guard vessels approached Taiwan as China gave a "stern warning" against separatism and called Taiwanese President Lai Ching-te a "parasite,". It was reported that at least 71 Chinese military aircraft and 13 navy ships were involved. Meanwhile, rocket forces simulated strikes on critical infrastructure, showing-off China’s precision-strike capability to target key energy and logistics nodes.7
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
4 Taiwan country profile, BBC News, 15 January 2024
5 President Lai holds press conference following high-level national security meeting-, News releases, Office of the President Republic of China(Taiwan), 13 March 2025
6 China sends more than 50 war planes near Taiwan as 'punishment' to separatism, ABC News, 18 March 2025
7 China launches military drills around Taiwan, calls Taiwan president a 'parasite', Reuters, 2 April 2025; Strait talking: What’s behind China’s military drills around Taiwan, European Council on Foreign Relations, 6 June 2025
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.8
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.9
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.10 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 and economic factors as well as 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 although his secretary of defence, Mr Pete Hegseth, has said
that the US stands by Taiwan.11
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.12 In China, popular support for a war to reunify Taiwan is unclear.13 Reports also indicate that Taiwan has increased defence spending, has US troops training the local military in Taiwan and in the US, has been testing High Mobility Artillery Rocket Systems and conducting military drills in preparation to defend itself should a war breakout.14
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.15
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
8 U.S. Relations With Taiwan, United States Department of State, 13 February 2025
9 US drops website wording on not supporting Taiwan independence, ABC News, 17 February 2025
10 Will China Invade Taiwan? A Potential Timeline for Conflict, Global Digest: Traveler Security, Global Guardian, 2 January 2025
11 Will China invade Taiwan?,The Week, 17 January 2025; Three reasons why China can't afford to invade Taiwan, Responsible Statecraft, 11 June 2025; and Taiwan faces a precarious future – whether or not US and China continue on path to conflict, The Conversation, 8 August 2025
12 Special Report: Taiwanese Preferences on Taiwan’s Political Future, Taiwan Public Opinion Foundation, 14 February 2025
13 Chinese Public Opinion Is More Divided on Taiwan Than It Seems, Foreign Policy, 21 March 2024
14 Taiwan runs largest defence drills in preparation for Chinese attack, ABC News, 17 July 2025
15 Taiwan Travel Advice & Safety, Smartraveller, 27 February 2025
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 which have been increasing in recent times, 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.16 A fear of persecution is not well-founded if it is merely assumed or is mere speculation.17 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.
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.
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.18 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.
CONCLUSION
For the reasons given above, I am not satisfied that the applicant is a persons in respect of whom Australia has protection obligations under s 36(2)(a) of 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.
Date of hearing: N/A
Representative of the applicant: N/A
16 Chan v MIEA (1989) 169 CLR 379 at 389
17 MIEA v Guo (1997) 191 CLR 559 at 572
18 MIAC v SZQRB (2013) 210 FCR 505
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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