1717432 (Refugee)

1717432 (Refugee) [2023] AATA 2413 (1 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)
CASE NUMBER:  1717432
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Lilly Mojsin
DATE:1 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 1 May 2023 at 3:18pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – borrowed money from underground bank – high interest – unable to repay loan – fear of kidnap and arrest – government corruption – unable to relocate – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 425(2)(b), 499
Migration Regulations 1994 (Cth), Schedule 2
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 19 July 2017 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Taiwan, applied for the visa on 8 December 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm on return to Taiwan.
By letter dated 11 April 2023 and sent to the applicant in accordance with section 441G of the Migration Act 1958, the applicant was notified that the Tribunal had considered the material before it but the Tribunal was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, at a hearing on 1 May 2023 at 10.30am.
The applicant was advised that, if the applicant failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.
By response to a hearing invitation, dated 21 April 2023, the applicant requested the Tribunal to decide the application on the papers.
The Tribunal is satisfied that the applicant has consented to the Tribunal deciding the review without the applicant appearing before it, and has proceeded to make a decision on the information before the Tribunal and not to offer the applicant a hearing.
In accordance with s. 425(2)(b) the Tribunal proceeds to decide this application on the material before the Tribunal.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
See Annexure A.
CONSIDERATION OF Claims and evidence
In the PV application the applicant claimed that
·His family owed usurious interest, so they were under threaten of creditor. His own security cannot be guaranteed, so he escaped from Taiwan.
·His family opened a small shop in his hometown. But not for long. The store was bankrupt and his father had to borrow money from underground bank. The underground bank’s interest is super high. His father was unable to pay the interest on the time as they required. Therefore, his family were hunted down.
·Taiwan’s government is corrupt. The government colludes with gangsters and underground bank. His family has to run away to stave off creditors. If his family were caught, they would face serious abuse and illegal imprison. His family dared not go home and they had to send him to go abroad in order to ensure his safety.
·If he returns to Taiwan, the underground bank will kidnap him and arrest him.
·He cannot relocate because the government of Taiwan is corrupt. Officials of the government, underground bank and the police collude with each other. They only care about their own benefits.
·If he returns to Taiwan, he will be caught by underground bank and persecuted. The government of Taiwan is corrupt. The police is a protective umbrella of underground bank. No matter where he went, he could be caught all the time.
Independent Evidence
Independent evidence indicates that 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[1]. Petty corruption is uncommon and high-profile corruption in Taiwan’s bureaucracy is rare and usually involve politically nominated officials rather than civil servants.[2] An anti-corruption body was set up in 2011 and international sources assess that it effectively prosecutes corruption.[3] Whistle-blowers are protected by law[4].
[1] 'Corruption Perceptions Index 2021', Transparency International, 24 January 2022, 20220125192959. Note, The score represents the perceived levels of public sector corruption in 180 countries/territories worldwide. The higher the score the less corrupt a country is perceived to be.
[2] BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.29,
[3] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.11, 'Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, pp.9-10
[4] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.29
Taiwanese police are effective and the crime rate is low. Violent crime rates are among the lowest in the world and crime is generally low[5]. Excessive use of force by police is rare, and lawyers are allowed to monitor interrogations to prevent torture.[6] 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[7]. The Constitution prohibits arbitrary arrest and detention and this principle is generally observed by authorities[8].
[5] ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021,
[6] ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021,
[7] 'Freedom in the World 2022 Taiwan', Freedom House, 9 June 2022, F3, 20220614105607
[8] 'Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, p.2; 'Freedom in the World 2022 Taiwan', Freedom House, 9 June 2022,
Usury is a commonly reported crime[9]. Some usury activities are linked to organised crime. Some people borrow money to support business interests, including for ventures involving mainland China.[10] In March 2021 police arrested eight suspected gang members accused of using violence and intimidation to collect money on behalf of creditors.[11] Usury is a hidden crime and little information is available about it.
[9] 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019
[10] 'Banqiao bank robber caught by New Taipei Police', Taiwan News, 5 March 2019; ‘Widespread Chinese antipathy 'real danger' to Taiwan: official’, Taiwan News, 4 September 2019
[11] 8 gang members arrested for illegal collection of debts in Taipei’, Focus Taiwan, 14 March 2021
Police actively target loan sharks. Usury is a crime that can attract a penalty of up to five years in prison.[12] 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.[13] Monitoring, intrusion upon, threats, intimidation and actual harm in an effort to instil fear are all criminalised[14].
[12] 'Criminal Code of the Republic of China', Government of Taiwan, as amended to 15 January 2020, arts 344 and 344-1
[13] Criminal Code of the Republic of China', Government of Taiwan, as amended to 15 January 2020, art. 344,
[14] Criminal Code of the Republic of China', Government of Taiwan, as amended to 15 January 2020, art. 344-
Loan sharks have been targeted in broad crackdowns against criminals[15]. Police operations against loan sharks are reported in the Taiwanese media and hundreds of loan sharks have been arrested in recent years[16].
[15] 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019
[16] 8 gang members arrested for illegal collection of debts in Taipei’, Focus Taiwan, 14 March 2021, 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019, 'Police tout results of raids on gun, loan operations', Taipei Times, The, 24 June 2019
Taiwan’s court system is free and fair. Courts are independent, fair and generally free of corruption[17]. All defendants are presumed innocent until proven guilty and have the right to a lawyer and to be present at trial[18]. 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[19].
[17] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11,
[18] 'Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, p.4,
[19] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11,
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[20]. 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.[21] The government has committed to addressing some of these concerns and has made some progress on judicial reform.[22]
[20] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11,
[21] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.10, 20220224094729
[22] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729
REASONS AND FINDINGS
On the basis of his Republic of China (Taiwan) passport, I accept that the applicant is a national of the Republic of China (Taiwan) and a not national or citizen of any other country or has a right to enter and reside in any country other than Republic of China (Taiwan). Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Republic of China (Taiwan) is the applicant’s “receiving country” for the purposes of s.36(2) (aa).
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the 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.
The applicant claims that he and his family are in debt to moneylenders in Taiwan and he would suffer significant harm due to ineffective and corrupt conduct by the Taiwanese authorities.
The applicant was aware that the Department did not accept that he feared persecution for any of the reasons provided in s 5J(1)(a) of the Act, and did not accept that the Taiwanese authorities, including the police and judiciary, were not effective in combating illegal money lending and that there was a real risk he would suffer significant harm within a reasonably foreseeable future on his return to Taiwan. The applicant was advised by the Tribunal that it had considered the material before it and could not make a favourable decision on the information before it and invited the applicants to a hearing. As the applicants did not attend the hearing, the Tribunal was unable to explore the applicant’s claims with him.
Without further information from the applicant the Tribunal does not accept that the applicant’s family opened a small shop in his hometown, the store went bankrupt and his father had to borrow money from an underground bank, that his father was unable to repay interest on a loan or that the family owed usurious interest, they were under threaten of creditor and were hunted down. Without further information from the applicant the Tribunal does not accept that the applicant’s family ran away from their home and could not return and that the applicant was sent abroad in order to ensure his safety. The Tribunal is satisfied that the applicant did not suffer any harm in Taiwan.
Therefore the Tribunal finds that the applicant did not suffer serious harm for a refugee reason in Taiwan.
The Tribunal is required to consider whether there is a real chance the applicant will suffer serious harm on his return to Taiwan.
As the Tribunal is satisfied the applicant did not suffer any harm in Taiwan, the Tribunal finds that there is not a real chance the applicant will suffer serious harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion on his return to Taiwan within a reasonably foreseeable future.
The Tribunal is required to consider whether the applicant will suffer significant harm on his return to Taiwan within a reasonably foreseeable future.
The applicant claims that Taiwan’s government is corrupt. The government colludes with gangsters and the underground bank. The police is a protective umbrella of underground bank. If he returns to Taiwan, the underground bank will kidnap him and arrest him. No matter where he went, he could be caught all the time. The Tribunal has found that the applicant did not suffer any harm in Taiwan. The independent evidence does not suggest that the government is corrupt and concludes with gangsters and underground banks. Therefore the Tribunal is not satisfied that the applicant will be kidnaped or arrested or caught all the time on his return to Taiwan, within a reasonably foreseeable future.
The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life. There is no evidence before me that there are widespread conditions of violence in Taiwan. The independent evidence, cited above, indicates that Taiwanese authorities crack down on loans sharks and there is an effective legal system in place. The Tribunal does not accept that there is a real risk of the applicant suffering significant harm, from non-state actors or the Taiwanese government, within a reasonably foreseeable future.
The Tribunal has found that the applicant does not have an adverse profile in Taiwan and the applicant does not suggest that he has committed any crimes in Taiwan. The Tribunal finds remote the risk that he would be subjected to torture, within a reasonably foreseeable future, on his return.
'Degrading treatment or punishment' is exhaustively defined to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable and the pain or suffering must be intentionally inflicted. The Tribunal has been unable to explore with the applicant his circumstances on return. The Tribunal is not satisfied that any difficulty in obtaining employment and accommodation in Taiwan that may be experienced by the applicant on return, amounts to cruel or inhuman or degrading punishment or treatment.
Having considered the applicant's circumstances singularly and on a cumulative basis, and for all the reasons set out above, 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 that there is a real risk the applicant will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture, or to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
Accordingly, the Tribunal finds the applicant does not meet the requirements of s.36(2)(aa).
CONCLUSIONS
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
Member

ANNEXURE A
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.
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.
…

‘Public Satisfaction with the Police is over 80% in 3 Consecutive Years Citizens Support Drug Enforcement, Fraud Prevention and Various Measures by the Police’, Ministry of Interior ( Taiwan), 25 February 2022,

[2023] AATA 2413

1 May 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction