1717162 (Refugee)

1717162 (Refugee) [2022] AATA 518 (5 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717162
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Brendan Darcy
DATE:5 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 5 January 2022 at 2:05pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from loan sharks – business partner borrowed to repay bank loan then abandoned business – threats to applicant and family members – credibility – inconsistent personal particulars and limited, vague and implausible claims – travelled to Australian very soon after business established – delay in applying for protection – applied shortly before working visa expired – no supporting documentation or post-hearing submissions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 July 2017 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 citizen of the Republic of China (Taiwan), applied for the visa on 29 November 2016. The delegate refused to grant the visa on the basis that they found there was no real chance of persecution for one or more of the reasons mentioned in s 5J(1)(a) in the receiving country and that the applicant’s claims did not amount to significant harm as they did not meet the threshold for cruel or inhuman treatment or punishment as defined in s 5(1).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born on [Date] in Taiwan and claimed to be a national of the Republic of China.
On the departmental file ([Reference]) is a copy of the applicant’s expired Taiwanese passport.
The applicant was granted a Class TZ Subclass 417 Working Holiday visa on 18 December 2013. The visa was set to expire on 6 December 2015. She first arrived in Australia while holding that visa [in] December 2014.
The applicant applied for a further Subclass 417 visa and was granted an associated bridging visa on 4 November 2015. On 7 December 2015, the applicant was granted a second Subclass 417 visa, which was set to expire on 6 December 2016.
The applicant first departed Australia [in] March 2016 and returned [in] April 2016. She departed Australia a second time [in] May 2016.
The applicant returned to Australia [in] June 2016 and lodged a Class XA Subclass protection visa application on 29 November 2016. She was granted an associated bridging visa on 5 December 2016. The applicant has not since departed Australia.
The applicant’s claims for protection and supporting evidence are contained in [the departmental file]. The applicant’s written claims for protection are very limited, and are summarised as follows:
Question 88 I am seeking protection in Australia so that I do not have to return to (name of the country or countries that you are able to legally enter and/reside in. This includes country you are a citizen or national of or you have a current visa for).
TAIWAN
Question 89 Why did you leave that country(s)?
I left Taiwan to avoid being harmed and persecuted by debt collectors.
Question 90 What do you think will happen to you if you return to that country(s)?
If I return to Taiwan and fail to pay money to the loan sharks, my life will be in danger anytime.
Question 93 Did you experience harm in that country(s)?
After I graduated from [Institution], my dream was to have my own [business] and [export] goods to every country. Via a friend's introduction, my friend and I plan to start up [a] company. I invested a relatively significant amount of fund. Our business operation was good. Afterwards, we tried to expand our business and borrow some money from loan sharks. We managed to pay our debt first. However, I didn't expect that my business partner took our money. After a few months, loan sharks came to me and only at that time I realized that our company didn't pay the debt for a long time. At that time, my friend suddenly disappeared. Loan sharks couldn't find my partner and made trouble to me all day. They threatened me that if I didn't pay back the money I would be harmed. They even sent people to take all of our clients' goods and I lost my clients due to this. Without my clients, I couldn't keep our business running. Loan sharks kept coming to my home and even beat me up. I had no choice to be leave my country.
Question 92 Did you seek help within the country(s) after the harm?
Yes
I tried to seek help from the police but they didn't help to solve my problem.
Question 93 Did you move, or try to move, to another part of the country(s) to seek safety?
No
Relocation to other places can’t solve my problem of being hunted and persecuted.
Question 94 Do you think you will be harmed or mistreated if you return to that country(s)?
Yes
If I go back to Taiwan, I will be beaten, false imprisoned and even killed.
Question 95 Do you think the authorities of the country(s) can and will protect you if you go back?
No
I tried to seek protection from the police but they didn’t offer any. It will be just the same if I go back
Question 96 Do you think you would be able to relocate within that country(s)?
No
No matter where I move, I could be easily located by loan sharks.
No supportive documents were submitted.
The applicant’s 866 Forms also indicated the applicant speaks Mandarin and reads and writes Chinese. It indicates that her last residential address in Taiwan was in Wanli district in New Taipei City. The applicant provides some information that she had attended [Institution].
The applicant does not declare her ethnicity, her religion, her occupation or her marital status. Nor does the applicant indicate the composition of her family, other than that her father was born in [Year 1] and her mother was born in [Year 2] and that they both reside in Taiwan.
On 20 July 2017, a delegate acting on behalf of the Minister refused to grant the applicant a protection visa.
On 7 August 2017, the applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal. The delegate’s decision record was attached to the application for review.
The applicant attended a scheduled hearing on 8 December 2021 to give evidence and present arguments as to the reasons she is owed Australia’s protection obligations. The applicant was assisted by an interpreter in the Mandarin and English languages.
At the end of the hearing, the applicant was provided with a post hearing opportunity to forward a number of supportive documents to support her claims for protection, and to do so by 10 December 2021 (a date nominated by the applicant as she claimed she had the capacity to so). The Tribunal did not receive any submissions or documents, either from the applicant or on the applicant’s behalf, right up to the time of making this decision.
At no stage in this application has the applicant been represented by a registered migration agent or legal practitioner.
There are no non-disclosure certificates attached to either the Departmental or Tribunal files.
ASSESSMENT OF CLAIMS AND FINDING
Country of reference
The applicant claims to be a citizen of the Republic of China (Taiwan). Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Taiwan is her country of nationality and also her receiving country for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act.
Third country protection
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s 36(3) of the Act.
Credibility findings
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
When considering the evidence cumulatively, the Tribunal found there to be a lack of overall credibility towards the applicant unsubstantiated written and oral evidence about her critical claims regarding fears of owing debts to loan sharks. The reasons for this are outlined below.
At the beginning of the hearing, the applicant was asked if all her claims were true and correct, as far as she knew and believed, and whether she would like to correct anything; the applicant said the applicant was true and correct and she would not like to correct anything.
As the Tribunal sought responses about her personal particulars, it was pointed out to the applicant that there were some significant errors and omissions in her application form. For instance, the Tribunal pointed out she had nominated her gender as male, when she was female. In her application for protection, the applicant did not mention her religion or ethnicity. However, she claimed at the hearing that she was a Christian and that she was a Taiwanese Aboriginal. Her application for protection mentioned that that she speaks, reads and writes in Mandarin/Chinese but did not mention she can also speak, read and write in Amis, an indigenous language to Taiwan. While the application mentions that she has a father and a mother living in Taiwan, the applicant did not mention in the application that she had two siblings. There is no mention of the applicant travelling to other countries in the application; however, the applicant claimed she travelled to [Country] in March 2016. (Arrival and departure stamps in the applicant’s passport supported this).
The Tribunal also accepts the following about the applicant’s visa and travel history: The applicant arrived in Australia in December 2014 while holding a working holiday visa. She was granted a second working holiday visa in December 2015. She departed Australia for the first time in March 2016 to visit [Country]. Although she departed Australia for [Country] in early 2016, the first time she returned to Taiwan was between 21 May 2016 and 4 June 2016. She did not apply for a protection visa until a further five months. This delay invited some concerns that the applicant only applied for a protection visa in order to remain in Australia to generate income or solely for migration purposes, and not because she had any genuine fears of serious or significant harm if returned to her home country.
Despite these misgivings, the Tribunal has placed some weight on the following uncontroversial evidence about her personal background provided at the Tribunal hearing, which was found to be reliable and credible.
The Tribunal accepts the applicant was born in Taipei in [Year 3], as claimed. It accepts the applicant belongs to an Aboriginal Taiwanese ethnicity and that she speaks Amis, an indigenous language to Taiwan. It also accepts the applicant can speak Mandarin and can read and write in Chinese. The Tribunal accepts the last full-time job the applicant had was in a [workplace] and that she had graduated from a [subject] course.
The applicant claimed that her mother and father and her two siblings continue to reside in Taiwan. It was also claimed the applicant had been married in Australia between April 2018 and December 2019 but otherwise had not been in a de facto relationship or married previously or since, or that she has any children or dependants. The Tribunal accepts these aspects of her personal circumstances.
Credibility concerns arising from the applicant’s dispositive claims
At the scheduled hearing, the applicant elaborated on her vague and limited written claims about a jointly owned business. The applicant claimed she had personally borrowed 8 million Taiwanese dollars (TWD) from two Taiwanese banks. TWD8 million is about the equivalent of AUD400,000. She claimed that her business partner, [Mr A], had also borrowed TWD8 million. The applicant claimed the business was established in early 2013 and described it as a [type of] business, which brought in [products] for various companies, and that the business had as many as 20 employees at one point.
When the applicant was asked what she used as collateral against the loan, the applicant claimed it was her house, but the bank has since acquired her home, which paid off about TWD3.5 million of her debts to the bank. The applicant claimed that she travelled to Australia on working holiday visas in 2014 and 2015 to pay off the rest of her loan. It was not until the applicant departed Australia for Taiwan in May 2016 that she discovered that her business colleague had abandoned the [business], and he took significant funds with him. She then discovered that he had borrowed significant monies from illicit money lenders or loan sharks. Having been harassed by loan sharks and/or their debt collectors, the applicant then returned to Australia in June 2016 in fear of her life. She applied for a protection visa five months after returning to Australia. She claimed that her family were forced to relocate from Taipei to central Taiwan to avoid harm and harassment from debt collectors.
There were a number of implausible elements to the applicant’s claims. Firstly, the Tribunal found it implausible that the applicant and her business partner established a business in early 2013 and that she applied to travel to Australia in late 2013 and then travelled to Australia in December 2014, instead of remaining in Taiwan to work in her struggling business, given she shared responsibility for its day-to-day operations. Secondly, it was implausible that the applicant, who had never run a business previously, undertook to co-own and co-operate an enterprise as demanding as a [type of] business with as many as 20 employees. Furthermore, it was implausible that banks would risk lending such a significant amount of funds to the applicant given her lack of proven business acumen. With these implausibilities in mind, the Tribunal has been invited to consider other credibility concerns regarding the applicant’s claims for protection.
The Tribunal found it deeply troubling that the applicant was unable to substantiate any of her claims with documentary evidence about owning a business or acquiring loans for that business or that she traded in that enterprise. When the Tribunal asked the applicant about registration of the business, she claimed that the absconding business partner had the paperwork. When the Tribunal asked for some evidence of the applicant’s loans with banks such as loan documents and accompanying documents such as a business plan, the applicant responded she did not have any. The Tribunal expressed its scepticism that a business with many employees and subject to loans from banks would not have some evidence that it traded or borrowed money and that it would not be onerous to provide some documentary evidence to support these claims. Towards the end of the hearing, the applicant undertook to provide some evidence of that business and its operations. However, despite being provided this opportunity, the applicant did not provide any submissions at all. This strongly indicated to the Tribunal that the claimed business, borrowings and the related claims about loan sharking lacked overall credibility.

The Tribunal also notes that it is implausible that the applicant trusted her business partner to operate the business without any significant oversight by the applicant and it was not until she returned to Taiwan in May 2016 that she discovered the business was not operational, that it had no employees and that her business partner had embezzled money from the shared business.
The applicant claimed to have reported her business partner to the police. However, she did not have the report (but her parents had it). The applicant then claimed she received messages on her telephone from loan sharks demanding her to repay the amount her business partner had borrowed in her name without her knowledge. The applicant claimed the amount owed to the loan sharks was TWD5 million. The applicant claimed her parents made a report to the police about the loan sharks’ threats via debt collectors. The Tribunal asked for a copy of the report. The applicant replied that her parents have the reports but they have been too ill to forward them. The Tribunal reminded the applicant she has siblings who had ample time to provide it to either the Department or the Tribunal.
The Tribunal does not accept the applicant’s oral claims at the scheduled hearing that she travelled to Australia in 2014 to work to repay debts to the bank while the business continued to operate, but only realised loan sharks had threatened her during her short visit to Taiwan in May/June 2016. In this regard, the Tribunal notes that the applicant returned to Australia in June 2016 and that it was a further five months before the applicant lodged a protection visa application. In the context of other credibility concerns, this notable delay in her application for protection strongly indicated that the applicant did not have any genuine, deep or urgent personally held fears of harm.
The Tribunal also noted the applicant had not repaid any amount to the loan shark since returning to Australia. The Tribunal said this might indicate that the applicant did not fear any loan sharks. It is noted the applicant was willing to work in Australia to repay debts to banks. The applicant further claimed that her family relocated to central Taiwan to avoid being harmed by the loan sharks. The applicant admitted no family members had been harmed despite the loan sharks being ruthless criminals. The Tribunal responded that, if that was the case, then it would be reasonable for her to relocate to the same or some other place within Taiwan. The applicant responded that this was possible. In the context of other adverse credibility concerns, the Tribunal found these specific claims were unpersuasive and not mutually supportive.
The applicant’s written claims stated that the applicant had been beaten; however, in her oral claims, she only mentioned her family being threatened over the phone. The applicant also changed her testimony when asked if she met her debt collectors face to face. She initially claimed she had not but then added the debt collectors came to the business premises and threatened her with a knife. She told them to pursue her business partner but they said the loan was in her name.
It is in the context of these numerous implausibilities and inconsistencies that the Tribunal has considered the applicant’s notable delay in applying for a protection visa. The Tribunal notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). The Tribunal notes that the applicant lodged a protection visa application five months after returning to Australia (when it was claimed she was harmed in Taiwan) and a few weeks before her working visa expired in December 2016. This strongly indicated that the purpose of applying for a protection visa was not because the applicant had any deep or urgent or even genuine fears of harm, but because she had very narrow options to remain in Australia.
Cumulative adverse credibility findings
The credibility of an applicant’s claims is central to determining whether those seeking asylum hold genuine, deep or urgent fears of persecution, both subjectively and objectively understood, or whether there are substantial grounds for believing an applicant faces a real risk of significant harm in returning to his or her country of reference or former usual residence.
In this matter, the applicant’s written and oral claims for protection lacked coherence and consistency. Her written claims were vague and limited. The applicant’s delayed application for protection was riddled with many errors, indicating a lack of care and diligence. During the scheduled hearing, the applicant’s answers were inconsistent, mutually unsupportive and lacking in overall plausibility. Where the claims could be reasonably substantiated with documentary evidence, the applicant did not take the opportunity to forward it to the Tribunal. Her reasons for not providing documentary evidence at earlier points in time were evasive and unpersuasive. The Tribunal’s concerns that the applicant’s dispositive or critical claims lacked overall credibility, cumulatively considered, are so great, that it is unable to provide the applicant with the benefit of the doubt. Accordingly, the Tribunal makes the following adverse credibility findings, which, when cumulatively considered, leads to a finding that she is not owed Australia’s protection obligations under sws.36(2)(a) and 36(2)(aa).
In the context of the lack of overall credibility regarding the applicant’s written and oral claims, it does not accept that the applicant, with a business partner, established [a type of] business of any kind. Nor does it accept the businesses had borrowed from any licensed financial institutions nor that the applicant borrowed against any of her personal or family assets. Nor does it accept the applicant employed any persons in the business, let alone as many as 20, as claimed in the scheduled hearing. This is not least because the applicant was unable to provide any documentary evidence that such a business existed, such as registration certificates, or that it received any banks loans from licenced financial institutions in the form of loan documents, as claimed.
The Tribunal does not accept that at some early stage in the business the applicant and her business partner struggled to repay the bank or that the applicant’s business partner embezzled and misspent money from the business. It does not accept the business partner borrowed from one or more illicit money lenders or loan sharks or that he did so in the applicant’s name. It does not accept the business partner absconded and that the loan shark and debt collectors threatened the applicant, either over the phone or in person, to repay the debt in lieu of a business partner whose whereabouts were unknown.
The Tribunal does not accept the loan shark sought to confiscate the goods and materials for the business’s clients as partial compensation, that the loan shark or debt collectors had threatened her at her home and had beaten the applicant, or that she was forced to leave Taiwan because of these vague and limited written claims, as outlined at the time of lodgement.
The Tribunal does not accept the claims made during the hearing that the applicant returned to Taiwan in 2016 to discover the business had been abandoned and her business partner had stolen money or borrowed it in her name from loan sharks. Nor does it accept the applicant or any of her family members were threatened over the phone or at knifepoint by debt collectors.
The Tribunal does not accept the applicant, or any family members, ever complained to the authorities in Taiwan about the harm and intimidation she had experienced or lodged any police reports or that her family had copies to send to the decision makers in Australia. The applicant was unable to substantiate these claims about police reports with credible documentary evidence because they were contrived. In this regard, the Tribunal does not accept the applicant genuinely feared the authorities would not provide her protection under such claimed circumstances.
The Tribunal does not accept the applicant’s family was forced to relocate to central Taiwan to avoid any intimidation or harm from debt collectors for the loan sharks, as claimed. Indeed, the Tribunal’s adverse credibility concerns about the applicant’s claims are so deep it does not accept any members of the applicant’s family had ever encountered any direct or indirect threats of harm from loan sharks in the past or continue to fear such persons or persons who act on their behalf because the applicant’s claims are contrived. These claims about her family’s relocation were not least undermined by the applicant claiming that her family had avoided harm by relocating, while her written claims stated she feared the debt collectors and loan sharks would be able to locate her.
Overall, the Tribunal finds the basic aspects of the applicant’s claims to have been fabricated. The applicant is not a credible or reliable witness of truth. These fabrications included the applicant’s basic claims about an indebted business, an absconding business partner, debts owed to loan sharks, threats made against the applicant and her family and the relocation of her family within Taiwan.
The applicant advanced these fabrications solely for migration purposes and not because she holds any fears of returning to Taiwan into the reasonably foreseeable future based on these claims. At no stage did the applicant have any genuine, urgent or deep fears of serious harm arising from these contrived claims, either at the time of application or the time of the scheduled hearing. It follows from this that that applicant does not hold any genuine, deep or urgent fears of serious harm, including being beaten, abducted, maimed or killed, about her claimed indebtedness, either subjectively or objectively understood, either now or into the foreseeable future if returned to the Republic of China.
In this regard, the applicant does not have a well-founded fear of persecution for any reasons mentioned in s 5J(1)(a), if returned to her country of nationality.
Based on the same adverse credibility findings above, cumulatively considered, the Tribunal does not have any substantial reasons to believe the applicant, as a necessary and foreseeable consequence of being removed from Australia to Taiwan, faces a real risk of significant harm. In this regard, the applicant’s critical claims about indebtedness to loan sharks does not satisfy the Act’s complementary protection provisions.
Cumulative findings
The applicant claimed that she did not have any debts with any licensed financial institutions in Taiwan as she had repaid all those debts. For completeness, the Tribunal accordingly finds there is no real chance of serious harm for reasons mentioned in s 5J(1)(a) and there is no real risk of significant harm of any kind considered under s 26(2A) arising from any lawfully acquired debt accrued by the applicant in the past, including through severe economic hardship as a result of lawful repayment or bankruptcy arrangements against the applicant, if she returns to Taiwan. In this regard, the applicant does not satisfy either s 36(2)(a) or s 36(2)(aa).
At no stage did the applicant advance any claimed fears of persecution based on her religion, her ethnicity, her political opinion (imputed or otherwise), or for any other reasons mentioned in s 5J(1)(a), or for any other reason at all that was relevant to ss 36(2)(a) and 36(2)(aa), if returned to Taiwan.
There are no more residual claims to consider in this application.
In the context of the applicant’s overall lack of credibility in relation to her claims for protection as well as her accepted circumstances, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason, including race, religion, nationality, political opinion or membership of a particular social group), if returned to her country of nationality. Her fears of persecution are not well-founded as required by s 5J of the Act and therefore she is not a refugee within the meaning of s 5H.
Considering the applicant’s circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the Republic of China there is a real risk that she will suffer significant harm.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no 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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
Member

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

[2022] AATA 518

5 January 2022

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction