1717391 (Refugee)
[2023] AATA 3887
•12 September 2023
1717391 (Refugee) [2023] AATA 3887 (12 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1717391
COUNTRY OF REFERENCE: Taiwan
MEMBER:Jason Pennell
DATE:12 September 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 12 September 2023 at 10.21am
CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from debt collectors – guarantor for friend’s business loan – friend disappeared with money and applicant harassed and threatened – delay in applying for protection – applied soon before second working visa ceased – no details or evidence of lenders, threats or harm – only one approach a year before departing – after working in Australia, now has money to repay loan and return ticket – loan of that size unlikely with no assets or income – claim of loan not accepted – country information – effective police and judiciary – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), (2B)(b), (4), (5), 5L, 5LA, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v MIEA (1994) 34 ALD 347
Subramaniam v MIMA (1998) VG310 of 1997
Zhang v RRT [1997] FCA 423
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
1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant who claims to be a citizen of Taiwan, applied for the visa on 3 October 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(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 (s 36(2)(b) and s 36(2)(c) of the Migration Act 1958 (the Act)).
3.The applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 8 August 2017. The applicant appeared before the Tribunal in-person on 24 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
4.The applicant was not represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
5.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.
6.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 (the Department), and where applicable, country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
APPLICANT’S CLAIMS AND EVIDENCE
Applicant’s identity
The applicant is a [Age]-year-old male who claims he was born on [Date] in Taiwan. He claims that he is a citizen of Taiwan and that he is not a national of any other country.
The applicant provided the Tribunal with a copy of his valid Chinese passport and the delegate was satisfied of the applicant’s identity. The information provided by the applicant is consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that the applicant is a citizen of Taiwan and as such his protection claims will be assessed against Taiwan as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant first arrived in Australia [in] October 2014 on a Working Holiday (TZ 417) visa which was valid from 8 September 2014 to 6 September 2015[1]. The applicant was then granted a further Working Holiday (TZ 417) visa which was valid from 6 September 2015 to 10 October 2016[2]. On 3 October 2016 the applicant lodged his Protection (XA 866) visa which was subsequently refused resulting in this merits review application. The applicant has remained onshore since arrival and is currently lawful on a Bridging Visa A which was granted on 4 October 2016[3].
Applicant’s claims for protection
[1] Applicant’s Movement Records, AAT File No 1717391. Doc ID 11364113
[2] ibid
[3] ibid
The applicant first submitted his protection claims to the Department on 3 October 2016[4] as follows:
[4] Protection Visa Application Form, Dept File No. [Reference], pages 18-20
Why did you leave that country(s)?
‘I left Taiwan to avoid being hurt and persecuted by debt collectors’
What do you think will happen of you return to that country(s)?
‘If I was sent to Taiwan, those debt collectors will chase me all day to demand money from me. They will even take violent means to harm me’
Did you experience harm in that country?
‘Yes. Three years ago, my friend borrow money from a private money shop and I was the guarantor. Later, my friend failed to pay his debt and the interest had grown to 600% of the principal. They tried to find my friend but failed, so they turned to me and demanded me to repay the debt. They tried every possible means to force me to clear the debt. They poured paint to my property and harassed my family, threatening me that they would harm me and my family if I didn’t make repayment. I had no other choices but to borrow some money from relatives and flee to Australia.’
Did you seek help within the country(s)?
‘Yes. I tried to seek help from the police, but they can’t provide protection for me twenty-four hours a day’
Did you move or try to move to another part of the country(s) to seek safety?
‘Yes. I tried to move to somewhere else, but those debt collectors still could track me. They constantly harassed me, and I couldn’t have a normal life and work.’
Do you think you will be harmed or mistreated of you return to that country(s)?
‘Yes. The debt collectors could continue to follow me and force me to pay back the money, including using violent means. My life will be in danger.’
Do you think the authorities of that country(s) can and will protect you if you go back?
‘No. As aforesaid, it is not possible for the police to protect me around the clock.’
Do you think you will be able to relocate within that country(s)?
‘’No. Debt collectors could track me and harm me anytime.’
The delegate summarised the applicant’s claims[5] as follows:
[5] Department decision record dated 3 July 2017, Dept File No. [Reference], pages 45-50
· ‘Three years ago, the applicant's friend borrowed money from a private money shop and he was the guarantor.
· His friend failed to pay his debt and the interest grew to 600% of the amount borrowed.
· These people were unable to locate the applicant's friend and turned to him to pay the debt.
· They poured paint into the applicant's property and harassed his family.
· They threatened to harm his family if he didn't make a repayment.
· He borrowed money from relatives and fled to Australia.
· He sought help from police in Taiwan but they cannot protect him 24 hours a day.
· He tried to relocate but the debt collectors found him and harassed him constantly, to the extent that he couldn't have a normal life or job.
· The applicant fears that if he returns to Taiwan debt collectors will follow him and force him to pay back the money, including by violent means.’
The applicant’s evidence
The applicant’s evidence to the Tribunal was that was that he was born on [Date] in Tainan, Taiwan. The applicant’s parents continue to live in Taiwan. The applicant’s father worked as [an Occupation 1] but stopped working due to illness. The applicant’s mother works in [a] [sector]. The applicant has two sisters, one who lives in [Country]. The other continues to live in Tainan, Taiwan.
The applicant educated in Tainan, Taiwan. He attended [named school] and completed high school in or about [year].
After school the applicant worked in [Work sector] for approximately 2 years. The applicant’s evidence was that while he was working in [Work sector], he did not have a fixed address. The applicant then worked as [an Occupation 2] in a [business] in Tainan for approximately one year. The applicant was then unemployed for approximately one year, during which time he prepared to travel to Australia. The applicant was supported by his family during this time.
The applicant’s evidence was that he came to Australia because he had been ‘scammed’ by some friends. He claimed that he and a friend, known as [Mr A], had a plan to start a [business] together. The applicant claims that in or about 2013 his friend [Mr A] borrowed approximately TWD 4,000,000.00 (approximately $AUD200,000.00)[6] from an underground loan shark (‘the loan’). The applicant claims that he guaranteed the loan to the loan shark. The applicant’s evidence was that his friend negotiated the loan and arranged for him to sign the guarantee. The applicant claims that he met [Mr A] at a small restaurant in Tainan in which he signed the guarantee. The applicant evidence was that he did not keep a copy of the guarantee and he did not read it when he signed the document. [Mr A] took the guarantee and did not provide the applicant with a copy. The applicant was not able to tell the Tribunal where the restaurant was located including what road it was on.
[6]
The applicant’s evidence was that the loan was a scam, because [Mr A] disappeared once he had received the loan money from the loan shark. The applicant was not with [Mr A] when he received the money and had not arranged for it to be into a joint account for the purpose of commencing the new business. As a result, the loan shark demanded the money from the applicant. The applicant claims he tried to contact [Mr A] but was not able to reach him.
As a result, the loan shark approached the applicant in or about March or April 2013 for repayment of the loan money. The applicant’s evidence was that the loan shark approached him on one occasion at which he was told he may be harmed and have paint sprayed on is house if he does not repay the money. The applicant evidence was that he was not threatened by the loan shark again but that his scooter was broken. His evidence was that it seemed it had been broken on purpose. He believes it was damaged by the loan shark.
The applicant’s evidence was that a friend suggested that he travel to Australia to work to be able to repay the debt. When he arrived in Australia, he commenced work for [a Workplace] known as [Company name] in Melbourne’s north. His evidence was that he was paid approximately $800.00 per week. The applicant’s evidence to the Tribunal was that the loan had almost been paid off. His evidence was that he transferred the bulk of the money to his family and has approximately $AUD80,000.00 in savings to repay the loan shark. The applicant was not able to provide any evidence of having transferred any money to his family. In addition, he did not provide any evidence of having AUD$80,000.00 in savings as claimed.
The applicant’s evidence was that he has purchased air tickets to return to Taiwan in February 2014. His evidence was that while he has come concerns about returning to Taiwan, he stated that he has the money to pay the loan shark and as a result his fear is not as great as it was when he arrived in Australia.
COUNTRY INFORMATION
In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s 499 of the Act, the Tribunal must consider the country information assessments prepared by DFAT. However, there is no country information report about Taiwan prepared by DFAT for protection status determination purposes. The Tribunal has therefore considered other various country of origin information sources including the National documentation packages prepared by the Immigration and Refugee Board of Canada (IRBC) in relation to Taiwan. In addition, the Tribunal has considered the DFAT ‘Common Claims’ Republic of China (Taiwan) report dated 5 July 2022 (the DFAT Common Claims report) as detailed in Annexure ‘A’ to this decision.[7]
[7] Department of Foreign Affairs and Trade website ‘Australia-Taiwan Relationship’; OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a 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 enough 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.[8] Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[9]
[8] Section 5AAA, the Act.
[9] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[10] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[11] However, such a benefit should 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.
[10] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at 482.
[11] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
Applicant’s delay
It is legitimate for the Tribunal 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.[12] A delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[13] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[14]
[12] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J.
[13] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[14] Subramaniam v MIMA (1998) VG310 of 1997.
In this case the applicant initially arrived in Australia [in] October 2014 on a Working Holiday (TZ 417) visa. On 17 October 2013 the applicant was granted a further Working Holiday (TZ 417) visa which expired on 22 February 2015.[15] On 6 September 2015 the applicant was then granted a further Working Holiday (TZ 417) visa which was valid until 10 October 2016[16]. On 3 October 2016 the applicant lodged his Protection (XA 866) visa, approximately 3 years after his arrival in Australia.
[15] Applicant’s Movement Records, AAT File No 1717391. Doc ID 11364113
[16] ibid
The applicant’s evidence was that he did not apply for a protection visa when he arrived because he already had a working holiday visa and that he was not aware of the regulations in Australia. However, the Tribunal notes that the applicant’s claim for protection relates to matters that occurred prior to his arrival in Australia. Based on the applicant’s own evidence he guaranteed the loan to the loan shark more than a year prior to his arrival in Australia. The applicant’s evidence was that he spent approximately one year planning his travel to Australia. Therefore, in circumstances where the applicant had been threated prior to his departure for Australia, spent considerable time planning his travel to Australia and had applied for a working holiday visa to come to Australia, the Tribunal does not accept his evidence that he was not aware he could make a protection visa application at the time of his arrival in Australia.
As such, the Tribunal would have expected that if the applicant had a genuine fear of persecution upon his return to Taiwan, he would have made an application for protection as soon as possible after his initial arrival in Australia. Instead, the applicant remained in Australia for a period of approximately three years prior to making his protection visa application, during which time he applied for and was granted a further working holiday visa. In circumstances where the applicant has had contact with the department for the purposes of obtaining a working holiday visa permit, the Tribunal has reservations about the applicant’s credibility in relation to his claims for protection. If the applicant had feared being seriously or significantly harmed if he returned to Taiwan the Tribunal would have expected him to have made an application for protection upon his initial arrival in Australia.
Therefore, considering the applicant’s migration history and his delay in making his application for a protection visa, the Tribunal has significant concerns about the applicant’s claimed fear of being seriously or significantly harmed if he is returned to Taiwan. As such, the Tribunal has placed little weight on the applicant’s evidence in relation to his claims.
Accepted Facts
Based on the evidence provided in his review application the Tribunal accepts that the applicant:
(a). was born on [Date] in Tainan, Taiwan.
(b). parents continue to live in Taiwan.
(c).has two sisters, one who lives in [Country]. The other continues to live in Tainan, Taiwan.
(d).attended [named school] and completed high school in or about [year].
(e) worked in [Work sector] for approximately 2 years and as [an Occupation 2] in Tainan for approximately one year.
Applicant’s refugee claim
Relevant grounds
To be considered a refugee pursuant to s 36(2)(a) of the Act, it is necessary that if an applicant is returned to his or her country, he or she has a well-founded fear of persecution by reason of his or her race, religion, nationality, membership of a particular social group (PSG) or political opinion pursuant to s 5J(1)(a) of the Act. In this case, it was open to the applicant to submit that his claim falls within the scope of s 5J(1)(a) of the Act by reason of his membership of a PSG as a person who will suffer serious harm if he is returned to Taiwan due to having guaranteed a loan to a loan shark.
When a person claims to fear being persecuted for reasons of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It states:
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.
As such for a person to be treated as a member of a PSG (other than the person’s family) he or she must have a characteristic, other than a fear of persecution, that is shared, or is perceived as being shared, by each member of the group. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.[17]
[17] Section 5L of the Act; Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264–266 and Gummow J at 285.
In this case, the Tribunal has reservations as to whether the applicant’s claim that he owes money to a loan shark in Taiwan constitutes a characteristic that can be described as innate or immutable or that it is so fundamental to his identity or conscience that he should not be forced to renounce it as required under the Act. Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that the applicant is a member of a PSG within the scope of s 5J(1)(a) of the Act.
Applicant’s well-founded fear
An applicant must have a well-founded fear of persecution. Section 5J of the Act states that for the purposes of an application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country. In the case of a PSG, the persecution said to be feared by the applicant must be for reasons of membership or perceived membership of the group.[18]
[18] Sections 5H(1) and 5J(1)(a) of the Act; see Applicant A v MIEA (1997) 190 CLR 225 at 240.
In Chan v MIEA[19] the Court in considering the Convention held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[20]
[19] (1989) 169 CLR 379 at 396
[20] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[21] Section 5J(4) of the Act requires that the reason for the persecution must be the essential and significant reason and that it must involve systematic and discriminatory conduct.
[21] Chan Yee Kin v MIEA (1989) 169 CLR 379.
In this case, the Tribunal has considered if there is a real chance the applicant will be seriously harmed if he was returned to Taiwan and, for the reasons expressed below, the Tribunal has found that the applicant does not have a well-founded fear of persecution as claimed, either on a subjective or objective basis.
Applicant’s claim
The applicant claims that there is a real chance he will be seriously harmed if he is returned to Taiwan because he owes money to a loan shark because of having entered guarantee for a loan to his friend [Mr A]. The applicant claims that the loan was entered into because he and [Mr A] had intended to start a [business] in Tainan, Taiwan. The applicant did not provide any details of the agreement between him and [Mr A] for the purposes of commencing a [business].
The applicant’s evidence was that he was not involved in negotiating the loan with the loan shark. He was not able to provide a copy of the loan agreement or guarantee. In addition, he was not able to state the loan shark’s name. The applicant claims he did not read the guarantee or loan agreement at the time he signed the guarantee. Nevertheless, the applicant was not able to tell the Tribunal the name or location of the restaurant in which he met [Mr A] for the purposes of executing the guarantee.
In addition, the applicant did not provide any detail or independent evidence to support his claim that he had entered a guarantee as claimed. The applicant did not provide any details of money being transferred to his family for the purposes of paying the loan shark or of the &AUD 80,000.00 saved as claimed.
Finally, the applicant did not provide any details of having been threatened or harmed in Taiwan. In fact, it was the applicant’s evidence that he had only been approached by the loan shark on one occasion, more that 12 months prior to him traveling to Australia. The applicant claims his scooter was damaged but was not able to say that it was caused by the loan shark. Save for being approached on the one occasion in or about March or April 2013 the applicant conceded that he had not experienced harm in Taiwan. Finally, the Tribunal finds that it is highly unlikely that a loan shark would lend such a significant sum to [Mr A] and the applicant, in circumstances where they had no job, no source of income and no assets upon which the loan shark could recover his money in the event of a default on the loan.
Therefore, based on the evidence provided by the applicant the Tribunal does not accept that he guaranteed the loan as claimed. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed because of having borrowed money from a moneylender. Accordingly, there is no real chance the applicant will be seriously harmed by the government, or the police as claimed.
Access to state protection
If the applicant did guarantee the loan as claimed (which the Tribunal has specifically found, he did not) then based on the available country information the Tribunal finds that the applicant would be able to obtain effective protection to the extent that there would be no real chance that he would suffer serious harm if he were returned to Taiwan.
The country information reports[22] that criminal penalties apply in relation to corruption by officials, which the authorities implement effectively. The Ministry of Justice and its Agency Against Corruption are responsible for combating official corruption. It’s reported that the ministry has received sufficient resources and collaborated effectively with the community within the scope of the law. Wrongdoing has occurred in government procurement because of political and business interests being closely intertwined. The current DPP-led government has moved to reduce such practices, including through amendments to the Government Procurement Act that were adopted in 2019.[23] Great importance has been attached to an ethical and clean administration in an environment where integrity is closely associated with national competitiveness and international image. On 25 January 2022 Transparency International published the 2021 Corruption Perceptions Index (CPI) on which Taiwan was listed at number 25 out of 180 countries. This represents an improvement of three places from the 2020 CPI results.[24]
[22] ibid
[23] ibid
[24] Agency Against Corruption, Ministry of Justice, ‘A New Record! Taiwan jumps in Global 2021 rankings on least corrupt countries’ 25 February 2022 >
As part of the work being performed by the Agency Against Corruption of the Ministry of Justice corruption charges were recently brought against current and former officials from multiple parties.[25] In 2020, two members of the Kuomintang (KMT), one from the DPP and one independent (a former legislator from the New Power Party) were charged with taking bribes from business magnate Lee Heng-lung, former chairman of Pacific Distribution Investment Co.[26] Nevertheless, it’s reported that corruption is significantly less pervasive than in the past.
[25] ibid
[26] US State Department; 2022 Country Reports on Human Rights Practices: Taiwan >
The overall crime rate in Taiwan is low.[27] The National Police Administration (NPA) of the Ministry of the Interior is well trained and professional.[28] The mission of the NPA is to carry out police and law enforcement in Taiwan, maintain public order, uphold the safety of its citizens and society and promote the welfare of citizens.[29] Violent crime rates in Taiwan are amongst the lowest in the world.[30] Excessive use of force by the police is rare and lawyers are permitted to monitor interrogations to prevent torture. It’s reported[31] that the people in Taiwan are increasingly satisfied with the country’s public safety and police services with 85.66 per cent of the population satisfied with police performance.
[27] Crime and Police in Taiwan; ibid
[29] Protection Visa decision records dated 14 July 2017; Dept File No CLF2016/92638
[30] US State Department; 2022 Country Reports on Human Rights Practices: Taiwan The DFAT Common Claims report p.6
[31] Taiwan Today ‘Poll sees rising satisfaction with ROC public safety’ 20 May 2015, Freedom in the World 2022 Freedom House 9 June 2022 Taiwan,
The Taiwanese constitution and law prohibit arbitrary arrest and detention and provide for the right of defendants to challenge the lawfulness of their detention in court.[32] In addition, the constitution provides for an independent judiciary and the independence and impartiality of the courts is respected by the authorities and enforced. Defendants are permitted access to their files and access to legal representation.[33] In circumstances where a person cannot afford and is unable to obtain legal representation programs to ensure such representation are provided.[34]
[32] US State Department; 2022 Country Reports on Human Rights Practices: Taiwan ibid
[34] ibid
The country information reports that usury is a crime in Taiwan that attracts a penalty of up to five years in prison.[35] The law prohibits the lending of money at an obviously inappropriate interest rate based on the ‘urgent need, carelessness, inexperience or lack of other resort’ of the borrower.[36] The police conduct regular crackdown on illicit activities related to organised crime including loan sharks and underground money dealers.[37] It’s reported[38] that people often borrow money through unauthorised moneylenders to support business interests including ventures involved in mainland China. In March 2021 police arrested eight people suspected of being gang members accused of using violence and intimidation to collect money on behalf of creditors.[39] In addition, in March 2022 the Taiwanese National Immigration Agency conducted raids and questioned five people in connection with a suspected loan-shark operation that targeted Indonesian migrant workers.[40] In July 2023 a woman was arrested after demanding illegally high interest rates from migrant workers and threatening their families.[41]
[35] Criminal Code of the Republic of China, Chapter 32; The DFAT Common Claims report p.8
[36] ibid
[37] Taipei Times, ‘Police detain 350 in crackdown on organised crime’ by Jason Pan 4 May 2019 The DFAT Common Claims report p.8; Malaysian News, ‘Taiwan businessman lodges police report against loan shark for refusing to take final loan instalment’ by Sylvia Looi 28 March 2022
[39] Focus Taiwan ‘8 gang members arrested for illegal collection of debts in Taipei’ 14 March 2021 Taipei Times ‘Alleged loan shark gang preying on foreigners busted’ by Jason Pan, 13 March 2022 Taiwan Times ‘Woman accused of high-interest scam in Taiwan’ 12 July 2023 Matthew Strong >
Despite usury being a crime in Taiwan, based on the available country information the Tribunal accepts that unauthorised moneylending does occur. Nevertheless, the country information indicates that the police and other authorities are active in prosecuting illegal moneylending activities together with corruption within government administration. Therefore, having considered the operation of s 5J(2) alongside the available country information, the Tribunal is satisfied that, if it did accept that the applicant did borrow money from a moneylender or he was threatened by the authorities due to illegal moneylending practices as claimed, effective protection measures are available in Taiwan by the state.[42] In addition, based on the available country information, the Tribunal finds that the state is able and willing to provide such protection.[43] That is, the applicant can access the available protection and the protection provided is durable.
[42] Section 5LA(1)(a) of the Act
[43] Section 5LA(1)(b) of the Act
From the available country information, the Tribunal finds that Taiwan has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system.[44] Therefore, by operation of s 5J(2) and s 5LA, the applicant does not have a well-founded fear of persecution as claimed or any related claim or any other reason.
[44] Section 5LA(2) of the Act
In any event, it was the applicant’s evidence that he has purchased a ticket to return to Taiwan in February 2024. The applicant’s evidence was that he had repaid most of the debt and had the savings to pay the loan shark. As a result, the applicant conceded that he did not have a fear of being seriously harmed if he was returned to Taiwan. Therefore, based on the applicant evidence, Tribunal finds that there is no real chance the applicant will be harmed if he is returned to Taiwan because he guaranteed the loan as claimed.
Accordingly, by operation of s 5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s 36(2)(a) regarding the claims by the applicant to be a victim of a moneylender or a loan shark.
Therefore, having considered the applicant’s claims both individually and cumulatively the Tribunal finds that the applicant does not have a well-founded fear of persecution if he returns to Taiwan and finds that the applicant does not satisfy s 36(2)(a).
Complementary protection
The Tribunal also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.
For the reason detailed above the Tribunal has not accepted the applicant’s evidence that he guaranteed the loan to the loan shark as claimed. In any event the applicant has purchased a ticket to return to Taiwan in February 2024 claiming that he has repaid most of the loan. Accordingly, the Tribunal has found that there is no real chance that he would be seriously harmed if returned to Taiwan. As such, for the reasons expressed above in considering the applicant’s claim as a refugee the Tribunal finds that there is no real risk that he will be significantly harmed if he is returned to Taiwan.
In addition, for the reasons expressed above the Tribunal has not accepted that the applicant is at risk of serious harm from a loan shark pursuant to s 5J(5) of the Act. Having considered s 36(2A) of the Act, the Tribunal finds, for the reasons above, that the harm the applicant claims to fear does not amount to significant harm. As such the Tribunal finds that there is no real risk that the applicant will be significantly harmed by the money lender if he is returned to Taiwan.
Having considered the country information and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s 36(2)(a), the Tribunal does not accept that the applicant will suffer significant harm due to borrowing money from a loan shark as claimed. As such the Tribunal does not accept that the applicant has a real risk of significant harm as outlined in s 36(2A)(c) and (d) and finds that, there is no real risk the applicant will be significantly harmed upon his return to Taiwan.
However, in circumstances where the Tribunal accepts he may have guaranteed the loan to the loan shark (notwithstanding the Tribunal specifically finding he did not) the Tribunal finds he can obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm.[45] To satisfy s 36(2B)(b),[46] the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[47] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s 36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[48] However, the test in s 36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection. That is, s 36(2B)(b) requires the Tribunal to be satisfied that the protection available would remove the real risk of significant harm.
[45] Section 36(2B)(b) of the Act
[46] MIAC v MZYYL (2012) 207 FCR 211
[47] MIAC v MZYYL (2012) 207 FCR 211 at [40].
[48] In MIAC v MZYYL (2012) 207 FCR 211 at [36].
Having considered the country information and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s 36(2)(a), the Tribunal finds that the level of protection from state and other authorities available to the applicant, if removed from Australia to anywhere within the applicant’s country of reference, would remove the real risk of significant harm. That is, the Tribunal finds that the NPA will provide the applicant effective protection from physical harm. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Taiwan, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s 36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Taiwan and therefore the applicant does not satisfy s 36(2)(aa) in this regard.
In all the circumstances, the Tribunal finds that, pursuant to s 36(2)(aa) there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm from a loan shark as claimed.
At no stage did the applicant advance any other reason, such as his race, nationality or religion, in his written claims that he is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s 36(2)(a) and s 36(2)(aa) of the Act.
Having considered his claim and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk he will suffer significant harm, including that he will be arbitrarily deprived of his life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s 36(2)(aa).
Conclusions
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 the Act for the reasons mentioned in s 5J(2). Therefore, the applicant does not satisfy the criterion set out in 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) based on 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.
Jason Pennell
Senior MemberAnnexure ‘A”
Race
Taiwan’s population is almost entirely Han Chinese with a small number of racial minorities. About 95 per cent of the population is Han Chinese. Of these, about 70 per cent are Hoklo and a large Hakka community also exists. About 2.3 per cent of the population are indigenous Taiwanese, an Austronesian ethnicity, of which there are 16 recognised groups. Government programs promote indigenous interests, but inequality remains. Indigenous people have access to: low-interest housing loans and rent subsidies; privileged access to senior high schools and universities; a 1% quota within the public service, public schools and state enterprises with 100 or more employees, and programmes to protect their language and culture. These measures have helped to narrow inequality over time.5 In spite of these efforts, development indicators for indigenous health and education are lower than for the Han majority.
Nationality
Taiwanese nationality is inherited from one or both parents. Nationality is derived from either a Taiwanese mother or father or both. Taiwanese nationality can also be conferred on a person that is born in Taiwan and whose parents’ nationality is not known or whose parents were stateless. Naturalisation is also possible if certain conditions are met, including living in Taiwan for most of a year for five consecutive years, having a basic knowledge of Chinese and being of good character. Dual citizenship is possible, but holders of another citizenship cannot hold government positions. The People’s Republic of China (PRC, mainland China) does not recognise dual citizenship, but some Taiwanese citizens maintain their household registration (hukou) in the mainland. Taiwan does not recognise refugees; however, some people have sought asylum in Taiwan. Taiwan does not have a refugee law and cannot, by nature of its status under international law, be a member of the Convention Relating to the Status of Refugees. PRC nationals unlawfully present are legally required to be returned to the PRC, although Taiwan allows PRC asylum seekers to remain in Taiwan on a case-by-case basis. Many Hong Kong asylum seekers have sought to flee to Taiwan since the 2019-2020 unrest in Hong Kong and the government has similarly extended residency rights on a case-by-case basis to Hong Kongers. These rights do not allow asylum seekers to access education or work rights. In July 2020, the Taiwan government opened an office to assist people fleeing Hong Kong and who wish to remain in Taiwan. The office has been established under Article 18 of the Laws and Regulations Regarding Hong Kong and Macao Affairs which permits Taiwan to provide ‘necessary assistance’ to people in Hong Kong whose safety and liberty are threatened due to political factors. In 2021, Taiwanese media reported that authorities had assisted more than 100 Hong Kong nationals in Taiwan under legal provision for “Hong Kong or Macau Residents whose safety and liberty are immediately threatened for political reasons”. PRC-born spouses receive work rights but must wait longer than other nationalities to apply for Taiwanese residence. Non-Taiwanese born spouses from Southeast Asia and the PRC account for 2.3 per cent of the population. The law allows non-PRC-born foreign spouses of Taiwan passport holders to apply for Taiwan residency after three years, while PRC-born spouses must wait six years. Unlike non-PRC spouses, however, PRC-born spouses may work in Taiwan immediately on arrival. In December 2016, the Nationality Act was amended to permit foreign spouses, but not PRC-born spouses, who divorce due to domestic violence or who become widowed, to become naturalised. In December 2018, the Ministry of the Interior proposed changes to immigration regulations which would strengthen the custodial and residency rights of PRC-born spouses. According to the Ministry of Interior, 43 immigrants who suffered domestic violence or were widowed were naturalised in 2019.
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State protection and rule of law
Police ForcePolice are effective and the crime rate is low. Violent crime rates are among the lowest in the world and crime is generally low. Excessive use of force by police is rare, and lawyers are allowed to monitor interrogations to prevent torture. A 2021 independent survey measuring public satisfaction with justice and crime prevention policies shows that for the third consecutive year more than 80 percent of the respondents were satisfied with the police in maintaining public safety. The Constitution prohibits arbitrary arrest and detention, and this principle is generally observed by authorities.
Judicial system
Taiwan’s court system is free and fair. Courts are independent, fair and generally free of corruption. All defendants are presumed innocent until proven guilty and have the right to a lawyer and to be present at trial. The most recent data of the World Values Survey (2019) shows that 56 percent of respondents in Taiwan expressed at least “quite a lot” of confidence in the judiciary. Nevertheless, large numbers of Taiwanese harbour long-standing and deep-seated mistrust in the effectiveness, political impartiality and fairness of the court system and judges. Some Taiwanese feel that the judicial system is unfair in rulings related to high profile political cases and President Tsai highlighted judicial reform as one of the core policy goals of her administration in order to address popular mistrust in the country’s court system. The government has committed to addressing some of these concerns and has made some progress on judicial reform.
Corruption
Corruption in Taiwan is low by international standards. Transparency International gave Taiwan a score of 68 out of a possible 100 in its 2021 Corruption Perceptions Index. Petty corruption is uncommon and high-profile corruption in Taiwan’s bureaucracy is rare and usually involve politically nominated officials rather than civil servants. An anti-corruption body was set up in 2011 and international sources assess that it effectively prosecutes corruption. Whistle-blowers are protected by law.
Crime
Taiwan has a low crime rate and one of the lowest violent crime rates worldwide. There is extensive CCTV coverage throughout Taiwan, which deters criminal activity, and the streets are generally safe. Violent crime rates are among the lowest in the world. As in other countries, property crime and fraud offences are reported in Taiwan. Drug offences are ‘increasing’ according to the US Department of State, but are punished severely, including for ‘soft drugs’ such as marijuana and the death penalty is applied to some drug crimes. Police actively seek out and prosecute organised criminals. Chinese organised crime gangs (triads) in Taiwan and are often linked to politics and are allegedly linked to pro-Beijing interests. The Organized Crime Prevention Act 2018 include a broad suite of offences including being a member of, financing, recruiting for or threatening a person in the name of an organised crime group. By May 2021 police had arrested 161 suspected gang members this year, and similarly 259 including 25 major criminal figures were arrested in 2020. Three hundred and fifty people were detained in a nationwide crackdown on organised criminals and loan sharks in May 2019.96 More than 300 people were arrested in a similar 2018 crackdown. In 2021, Taipei’s police commissioner acknowledged an increase in negative public perceptions in the ability of law enforcement authorities to contain organised crime and vowed to intensify police efforts by conducting more frequent operations. The overall effectiveness of these measures is difficult to measure, however some sources from 2016 claim that at that point in time, over decades, the reach, discipline and effectiveness of organised crime has decreased and that these organisations are now generally unsophisticated.
Loan sharks
Usury is a commonly reported crime. Some usury activities are linked to organised crime (seeCrime). Some people borrow money to support business interests, including for ventures involving mainland China. In March 2021 police arrested eight suspected gang members accused of using violence and intimidation to collect money on behalf of creditors. Usury is a hidden crime and little information is available about it. Police actively target loan sharks. Usury is a crime that can attract a penalty of up to five years in prison. The law proscribes lending money at an ‘obviously’ inappropriate interest rate based on the ‘urgent need, carelessness, inexperience or lack of other resort’ of the borrower. Monitoring, intrusion upon, threats, intimidation, and actual harm in an effort to instil fear are all criminalised. Loan sharks have been targeted in broad crackdowns against criminals. Police operations against loan sharks are reported in the Taiwanese media and hundreds of loan sharks have been arrested in recent years.
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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
ActionsDownload as PDF Download as Word Document
Citations1717391 (Refugee) [2023] AATA 3887
Cases Citing This Decision0
Cases Cited13
Statutory Material Cited0
Zhang v RRT & Anor [1997] FCA 423Kavun v MIMA [2000] FCA 370Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22