1828803 (Refugee)

1828803 (Refugee) [2024] AATA 2573 (14 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Billie Wei Shi (MARN: 9792783)
CASE NUMBER: 1828803

COUNTRY OF REFERENCE: Taiwan
MEMBER:Jessica Edis
DATE:14 June 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 June 2024 at 3:40pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – particular social group – women – victim of family violence – fear of Chinese former husband in Taiwan – physical assaults – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22
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 Home Affairs on 17 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is [an age]-year-old woman. She travelled from Taiwan to Australia [in] June 2017 on a Subclass 601 Electronic Travel Authority, entering the country on a Republic of China – Taiwan (Taiwanese) passport.
She applied for a protection visa on 7 September 2017 via an IMMI account and lodged by a migration agent. The applicant claimed to have left Taiwan in 2017 because she had been harmed by her violent Chinese ex‑husband, the police would not help her, and she feared he would find her and hurt her again.
The applicant did not provide any documents or evidence in support of her claims, and she was not interviewed by the Department about them or requested to provide further information to the Department other than for the purposes of verifying her identity.
The delegate refused the visa application on 17 September 2018. The refusal decision record contains extensive country information about Taiwan. The delegate concluded as follows:
Based on the country information cited above, I am satisfied that despite any existing problems, Taiwan has a reasonably effective and impartial police and justice system. I am satisfied that Taiwan is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against the sort of harm claimed by the applicant. Taiwanese legislation exists to protect the victims of sexual violence, including from intimate partners, and there is state mandated shelters provided for victims of domestic violence. I am therefore satisfied that the applicant has recourse to state protection if she were to return to Taiwan and be the victim of her violent ex‑husband again.
On 2 October 2018 the applicant applied to the Tribunal for a review of the refusal decision.
On 23 April 2024 the applicant was invited to attend a Tribunal hearing scheduled to take place before me on 9 May 2024. The invitation stated that I had considered the material before me, but I was unable to make a favourable decision on that information alone.
The applicant indicated that she was not available to appear before the Tribunal on 9 May 2024 and requested another date. On 17 May 2024 the applicant received an invitation to attend a rescheduled hearing on 5 June 2024, commencing at 9:30am (Perth time).
On 27 May 2024 the applicant notified the Tribunal that she intended to take part in the hearing, and she indicated that she needed a Mandarin interpreter for that purpose. She appointed a new representative who would be participating in the hearing too.
On 30 May 2024 the applicant provided the Tribunal with a written statement signed and dated by her, in support of her case. The statement commenced with the sentence:
I write to provide more detailed information about how my ex-husband harmed me physically and psychologically to a degree that I am afraid of returning to Taiwan.
On 4 June 2024 the applicant was sent an SMS reminder about the hearing.
The applicant did not appear at the hearing on 5 June 2024 at 9:30am (Perth time) when it was due to commence. A Tribunal officer made multiple attempts to contact the applicant and her representative between 9:30am and 9:50am on 5 June 2024, without success.
There is no Tribunal record of any communication from the applicant on or before the day of the hearing requesting a postponement or otherwise putting the Tribunal on notice that she was not going to attend after all.
On 6 June 2024 the applicant’s representative emailed the Tribunal in response to a request for an explanation as to her client’s non-appearance at the hearing. The email stated:
Please be advised that the applicant [named] has decided not to attend the hearing. She agrees to let the Member make a decision based on the submission she’s provided to the Immigration Department and AAT.
The representative’s email provided a medical certificate in the applicant’s name which was dated 6 June 2024, and which said:
I have examined [the applicant] who in my opinion is suffering from a medical condition and will be unfit for work from 06/06/2024 to 08/06/2024.
The specified health reason is confidential medical information and can only be revealed to an employer with the express permission of the patient.
The representative did not explicitly state that the certificate was provided to explain the applicant’s failure to attend the hearing on 5 June 2024. I have inferred that was the intent. In any event, I am satisfied the applicant consents to me determining her case on the basis of the following evidentiary materials:
·a copy of the applicant’s passports;[1]
·the protection visa application form dated 7 September 2017; and
·the applicant’s statement dated 30 May 2024.
[1] The passport on which the applicant travelled to Australia was uploaded to her IMMI account. It has since expired. The applicant provided the Tribunal with a copy of her renewed, current passport.
CRITERIA FOR A PROTECTION VISA
I set out below a summary of the criteria which determine an applicant’s eligibility for a protection visa.[2] They are found in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth).
[2] The relevant provisions are extracted in an annexure to this Statement of Decision and Reasons.
The applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, she is a person in respect of whom Australia has protection obligations either:
·under the ‘refugee’ criterion; or
·on other ‘complementary protection’ grounds;
or she is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
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) of the Act.
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: s 5J(1)(a); and
·there is a real chance they would be persecuted for one or more of those reasons: s 5J(1)(b); and
·the real chance of persecution relates to all areas of the relevant country: s 5J(1)(c).
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a), then the reason(s) must be the essential and significant reason(s) for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person (s 5J(4)(b)) and systematic and discriminatory conduct (s 5J(4)(c)).[3]
[3] Additional requirements relating to a ‘well-founded fear of persecution’ and the 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–5LA.
However, a person is deemed not to have a well-founded fear of persecution if effective measures are available to the person in a receiving country to protect them: s 5J(2).[4]
[4] See s 5LA of the Act for the meaning of ‘effective protection measures’, annexed to this Decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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). Pursuant to s 36(2A), a person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Pursuant to s 36(2B)(b), there is taken not to be a real risk that an applicant will suffer significant harm if the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm.
Mandatory considerations
Section 499 of the Act empowers the Minister to give directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. Relevantly, Ministerial Direction No.84 (MD 84), made under s 499 of the Act, concerns the consideration of protection visa applications.
In accordance with MD 84, I am required to take account of the ‘Refugee Law Guidelines’ and the ‘Complementary Protection Guidelines’, prepared by the Department.
I am also required to consider country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes. In that regard, I will take account of a DFAT paper entitled ‘Common Claims – Republic of China (Taiwan)’ effective from 15 August 2023 (the DFAT Report).
CONSIDERATION OF CLAIMS AND EVIDENCE
I consider the applicant’s protection claims and evidence below.
Country of nationality
The applicant provided the following information on the protection visa application form about her birth, residency, and citizenship:
·She was born in [year] in Zhejiang[5] in China.
·She was a Chinese citizen at birth.
·Her current citizenship is not the same as her citizenship at birth.
·She acquired Taiwanese citizenship in October 2000 by conferral.
·She lived in Taoyuan City, Taiwan from October 2000 to June 2017.
·She departed Taiwan on [a day in] June 2017 and arrived in Australia the next day.
·She travelled to Australia on a Taiwanese passport.
·She did not have any other passports or documents for travel.
·She did not have the right to enter or reside in (temporarily or permanently) any country other than her country of nationality or former country of habitual residence.
[5] Alternatively spelled as Chekiang.
I have viewed a copy of the passport that the applicant used to enter Australia, which expired in [2020], and a copy of her current passport, which is valid until [2029].
Based on the applicant’s passports and the details about her citizenship entered on the protection visa application form, I am satisfied although the applicant was born in China and lived there until 2000, she is now a citizen of Taiwan, and not a dual national. Therefore, for the purposes of the Act, the relevant ‘country of nationality’ and ‘receiving country’ is Taiwan.
The claims
The applicant made the following claims on her protection visa application form:
·She left Taiwan in 2017 because she had been harmed by her ex-husband (the Ex).
·She came to Australia to “avoid” the Ex’s violence.
·The Ex is her first husband.
·She met and married the Ex in China.
·When she was married to the Ex, it was like being “a hostage” and he forced her to do a lot of things that she did not want to do. The Ex had a “violent personality”.
·After she divorced the Ex, she married a man by the name of [Mr A].
·The date of her marriage to [Mr A] was [in] October 2000.
·She migrated to Taiwan with [Mr A] after she married him.
·She went to Taiwan to “avoid” the Ex.
·However, the Ex found her in Taiwan, to hurt her and [Mr A].
·The Ex came to Taiwan “to revenge” (sic).
·She sought help from the Taiwanese police, but they didn’t offer protection because it was “family conflicts” (sic) and they did not think what the Ex did to the applicant was a crime.
·She feared the Ex would return to Taiwan and hurt her again.
·She did not have a safe place that she could move to in Taiwan.
·She decided to come to Australia to seek protection from the Ex.
The applicant’s statement dated 30 May 2024 provides the following additional details:
·The Ex started abusing the applicant soon after they were married in 1984.
·They had a child together but that did not stop the Ex from repeatedly beating her.
·She suffered from black eyes and bruising all over her body and on her face as a result of the Ex assaulting her.
·One on occasion, she was beaten so badly by the Ex that she lost consciousness and was taken to hospital. After this happened, she was determined to divorce him.
·The Ex continued to harass her after they separated. She reported him to the local police in China, but they did not help. They did not take any notes and would not do anything about it. They said the Ex still loved her and he wanted her back.
·She knew the only way to escape the situation with the Ex was to leave China.
·She married [Mr A] – her “Taiwan husband” – and he took very good care of her. He applied for a migration visa for her to join him in Taiwan. Two months later, she moved to Taiwan to be with him, and lived in Taipei City from then.
·She thought that she “would forever be out of harmful way” from the Ex in Taiwan. However, one day, the Ex knocked on the door of her house in Taipei City. She answered the door. The Ex told her she would never be free of him. He then pulled her out of her home and started to kick and punch her. [Mr A] came outside and intervened, but he was pushed down and out of the way by the Ex.
·The applicant yelled for help, but nobody came. The Ex only stopped when there was blood all over the applicant and he was tired. When he left, he said that he would come back again unless the applicant returned to China.
·The applicant reported the assault to the police in Taipei City. They said they could not help because it was “domestic issues” (sic). [Mr A] told the applicant that the police would not help her because she was from mainland China, and not from Taiwan.
·The applicant wanted to move to another city within Taiwan, but [Mr A] did not wish to do so. Instead, they stayed put and [Mr A] installed security cameras and added extra locks to the front door and windows at their home.
·No further incidents took place for a period of “about 5-6 years”.
·The Ex returned to their house “one summer night in 2016”; [Mr A] answered a knock at the front door without checking the security camera because he thought it was their neighbour. The Ex rushed inside the house and locked the front door.
·The Ex pushed [Mr A] aside and found the applicant straight away. He shook her, punched her, pulled her hair, banged her head against the wall, and kicked her in the stomach. Her nose started bleeding, her lips “tore apart”, and “severe pain ran through [her] body”. A few minutes later, she lost consciousness.
·When the applicant woke up, the Ex was nowhere to be seen. [Mr A] was crying beside her.
·After the 2016 event, [Mr A] was so worried that the Ex would return and beat the applicant to death that he suggested she leave Taiwan and travel to Australia. He said he could not protect her the way that the Australian government can. He asked her not to return until she had protection from the Australian government.
·[Mr A] passed away about 1 year after the applicant left Taiwan.
·The applicant was “so afraid of returning to Taiwan as [she] had nowhere to hide, no place to live, no protection”.
The applicant did not provide any documentation in support of her claims, including a corroborating letter from [Mr A][6] vouching that he was a direct witness to the two vicious assaults that the applicant had suffered at the hands of the Ex and that it was his suggestion that she seek protection in Australia. Sadly, it is now not possible to obtain such a statement.
[6] When she lodged the protection visa application in September 2017.
At its highest, the applicant’s case is that:
·She was violently abused throughout her marriage to the Ex in China.
·After her first marriage ended, she wed [Mr A] (who was Taiwanese) in 2000 and moved to Taiwan soon thereafter.
·She became a Taiwanese citizen and did not return to China.
·The Ex twice travelled from China to visit her home in Taiwan without warning and, on each occasion, he assaulted her and then left.
·The two visits from the Ex to her home in Taiwan took place 5 to 6 years apart.
·She reported the first visit and assault to the Taiwanese police, but they did not help as it was a domestic dispute, and possibly also because she was from mainland China.
·The last visit from the Ex to her home in Taiwan took place in 2016.
·She was beaten so badly during the last visit that [Mr A] told her to leave Taiwan because he could not protect her from the Ex if he returned and assaulted her again. She travelled to Australia in June 2017 for this reason.
·[Mr A] passed away in 2018.
Giving the applicant the benefit of the doubt, I am prepared to accept the claimed events took place.
Country information
As noted above, I am required by MD 84 to take account of the DFAT Report to the extent that it contains country information that is relevant to the applicant’s claims and the determination of the applicant’s case.
The DFAT Report states as follows under the heading ‘State protection and the rule of law’:
Police 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 […]
Taiwan’s court system is free and fair. Courts are independent, fair and generally free of corruption […]
Corruption in Taiwan is low by international standards […]
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 […]

The DFAT Report also contains the following information:
State protection is available to victims of domestic violence. The revised Domestic Violence Prevention Act passed in January 2015 broadened the scope of protections to cover victims such as intimate partners who do not live together and minors who witness domestic violence. The revised law expands the definition of domestic violence to include harassment and coercion, and extends the validity of protection orders from less than one year to a maximum of two years. The revised law includes various types of protection orders, including emergency protection orders to safeguard a victim before the commencement of a trial. The government has established domestic violence prevention and victims support services delivered through the Domestic Violence Protection Center. Additionally, a 24-hour women and children hotline is publicly available to provide care, support. counselling, and a referral service.
I accept the information in the DFAT Report as a true and correct reflection of the current state of affairs in Taiwan.
The applicant’s circumstances if she returns to Taiwan
Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim by the person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claims.
The applicant’s case is based on past events, personally and privately experienced by her. However, her case lacks particulars about her present and potential future circumstances.
It is implicit the applicant remains fearful of going back to live in Taiwan because of the prospect of a return visit from the Ex and an inability to seek protection from his violence. But 8 years has passed since the Ex paid his second and final visit to the applicant in 2016. She has not claimed that he tried to visit her again during the period before she left for Australia in 2017, nor after she departed. She has said, however, that [Mr A] died in 2018. So, if the Ex had attempted to visit her in Taiwan in the last 5 or 6 years, then he would have discovered that the applicant and [Mr A] were gone.
The applicant has also failed to explain how, if she were to return to Taiwan, the Ex would be able to locate her among a population of over 23 million inhabitants, 95 per cent of whom are Han Chinese.[7] She said she had previously wanted to move to another city within Taiwan, to avoid detection from the Ex, but [Mr A] did not want to do so. Now that [Mr A] is deceased, I have inferred that she has no ties to her previous residential location; she is free to choose another one, elsewhere in Taiwan.[8]
[7] CIA World Factbook: Taiwan, Central Intelligence Agent (CIA, United States), as at June 2024: cia.gov/the-world-factbook/countries/taiwan/
[8] Noting that Taiwanese residents enjoy freedom of internal movement and Taiwanese citizens have a constitutional right to establish a residence and change that residence (as reported in the DFAT Report under the heading ‘Freedom of Movement’).
Regardless, a critical aspect of the applicant’s case is that she has not sought to address the inconsistency between her claims and the country information about the Taiwanese police and justice system, keeping in mind that this was (in effect) the basis on which the delegate refused the visa application in September 2018. Specifically, the applicant says that she does not think the authorities can and will protect her. She bases this assertion on the fact that she attempted to report the first occasion on which the Ex assaulted her in Taiwan to the police, and they did not help; they said to her it was a “domestic” matter. [Mr A] also suggested to the applicant that they did not help because she was from mainland China. According to the applicant’s statement dated 30 May 2024, the first assault in Taiwan took place “5 to 6 years” before the second assault, which she said occurred in the summer of 2016. Accordingly, I have inferred the applicant’s approach to the Taiwanese police took place around the same time as the first assault, meaning that it was in 2010 or 2011.[9]
[9] There is no mention of her trying to get help from the police at any other time on her visa application form or the statement provided to the Tribunal.
Meanwhile, according to the DFAT Report published in August 2023, Taiwan has an effective police force, a low overall crime rate, one of the lowest violent crime rates worldwide, and legislative provisions expressly directed at preventing domestic violence and protecting victims thereof. In other words, Taiwan is not a country in which violent crime is commonplace and/or tolerated by the authorities, including domestic violence. Rather, the current country information says, in summary, the maintenance of public safety by the police in Taiwan is highly prioritised, corruption is low, the justice system is fair, safeguards are in place to deter and prevent criminal activity, and victim support services are available. There is also no information of any kind which suggests that people from mainland China are not equally protected as Taiwanese-born people or treated differently under the rule of law.
Simply put:
·I have accepted the applicant attended upon the Taiwanese police in 2010 or 2011 to report the first assault from the Ex, and no action was taken at that time.
·But the applicant has not presented any evidence which contradicts the country information about the current state of affairs in Taiwan insofar as ‘State protection and the rule of law’ is concerned.[10]
·Evidently, the Taiwanese authorities have significantly strengthened their position towards protecting victims of domestic violence, law enforcement, and maintaining public safety, since 2010/2011.
·In the circumstances, contrary to her experience in 2010 or 2011, I am satisfied that the Taiwanese police would be both willing and able to assist the applicant if she needs their help to protect her from the Ex in the future.
[10] Noting the information contained in the DFAT Report of August 2023 is almost entirely consistent with the country information set out in the delegate’s refusal decision of 2018, derived from various other sources, and summarised at paragraph 5 above in this Statement of Decision and Reasons.
PROTECTION VISA CRITERIA
I now consider the visa criteria under s 36(2) of the Act as they apply to the applicant’s claims and evidence.
Refugee criterion
The first question I must answer is whether the applicant’s claims meet the refugee criterion per s 36(2)(a). To this end, I must be satisfied the applicant is a ‘refugee’, as defined by s 5H of the Act.
Section 5H(1)(a) relevantly provides that a person is a ‘refugee’ if, among other things, he or she has a ‘well-founded fear of persecution’. Section 5J(1)(a) provides that in order to have a ‘well-founded fear of persecution’ the person claiming protection must fear being persecuted for reasons of race, religion, nationality, political opinion or because he or she is a member of a particular social group.
In this case, the serious harm that the applicant fears is being assaulted by the Ex again. On the face of it, the applicant’s fear is not overtly linked to any one or more of the reasons set out in s 5J(1)(a). Having said this, the Refugee Law Guidelines note as follows:
Persecution [can be considered to arise] where the harm is initiated for a reason other than a protection reason but the State officially condones or tolerates the harm or otherwise cannot control the harm for a refugee protection reason.[11]
[11] See section 3.10.5 headed ‘Who is the persecutor?’ of the Refugee Law Guidelines.
In other words, the fact that the applicant’s fear arises in the context of her personal circumstances – namely, the breakdown of her first marriage and the Ex’s vendetta against her – is not the end of the matter. I must assess whether the State officially condones the harm, or cannot control the harm, for a s 5J(1)(a) reason. In this regard, I have considered the country information within the DFAT Report which, among other matters, describes:
·the Taiwanese police as effective;
·the Taiwanese court system as fair;
·the violent crime rate in Taiwan as low;
·the scope of the Domestic Violence Prevention Act passed by the Taiwanese government in January 2015 as having been broadened so as to enable victims to be protected from ex-partners and to expand the definition of domestic violence to include harassment and coercion;
·the introduction in Taiwan of various types of protection orders to safeguard victims; and
·the establishment of domestic violence prevention and victims support services in Taiwan,
and which does not include any reference to discrimination against individuals from mainland China.
The country information runs directly counter to any conclusion that the authorities in Taiwan condone or tolerate or cannot otherwise control the specific harm which the applicant fears. To the contrary, there are official measures and systems in place which are designed to target domestic violence (including violence threatened or carried out by ex-partners), and the authorities associated with implementing and overseeing those measures are reported to be effective, fair and generally free of corruption. Consequently, I am not satisfied the applicant has a fear of persecution for a s 5J(1)(a) reason.
Furthermore, I find on the basis of the country information that the Taiwanese police would be willing to help the applicant if the Ex returned to find her, and there are effective protection measures available to the applicant in Taiwan.[12] Pursuant to s 5J(2) of the Act, therefore, the applicant does not have a well-founded fear of persecution in any event.
[12] Per s 5LA of the Act.
The applicant does not meet the definition of a ‘refugee’ per s 5H of the Act. It follows that I find the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded that the applicant is not a refugee, I must turn to consider whether she is owed complementary protection pursuant to s 36(2)(aa). In this regard, there have to be 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 that she will suffer significant harm.
The term significant harm is exhaustively defined at s 36(2A) of the Act to mean certain types of harm, specifically:
(a)arbitrary deprivation of life;
(b)the death penalty;
(c)torture;
(d)cruel or inhuman treatment or punishment; and
(e)degrading treatment or punishment.
I am satisfied that if the Ex assaults the applicant again, in the same or similar manner to previously, then this constitutes a type of ‘significant harm’. The key issue, therefore, is whether there are ‘substantial grounds’ for believing there is a ‘real risk’ of that happening as a ‘necessary and foreseeable consequence’ of the applicant returning to Taiwan.
According to the Complementary Protection Guidelines:
[T]he assessment of ‘real risk’ of significant harm under the complementary protection grounds uses the same test as the ‘real chance’ test […] established by the High Court in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [19890 HCA 62 […] In discussing what the concept of ‘real chance’ is, the High Court noted that it was not a precise science but rather, was a way of considering a spectrum of possibilities of events occurring that were not remote or far-fetched […] [13]
[…]
[C]omplementary protection assessments may be based on past events, but are forward-looking.
[…] Whether or not the applicant suffered significant harm in the past is a relevant consideration. However, the fact that an application has not suffered significant harm in the past does not preclude there being a real risk of suffering significant harm in the future if returned. Conversely, past harm does not give rise to a presumption of future harm […][14]
[…]
The term ‘substantial grounds’ refers to the information or evidence required to support a belief that an applicant would face a real risk of significant harm, and forms part of the overall objective assessment of the concept of ‘real risk’.[15]
[…]
The phrase ‘necessary and foreseeable consequence’ requires decision makers to be satisfied of a real, as opposed to speculative, causal and temporal link between the applicant’s removal from Australia and the likelihood or possibility of their facing a ‘real risk’ of being subjected to significant harm.[16]
[13] See section 3.5.1 headed ‘Real risk – Approach for decision makers’.
[14] See section 3.5.4 headed ‘Real risk – Forward looking test’.
[15] See section 3.5.5 headed ‘Substantial grounds for believing’.
[16] See section 3.5.6 headed ‘Necessary and foreseeable consequence’.
I also note the High Court’s remarks in Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 as follows:
the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
Turning then to the accepted evidence in the applicant’s case: she was assaulted during her marriage to the Ex in China from 1984 until 2000, and thereafter the Ex assaulted her twice in Taiwan, firstly in 2010 or 2011, and again in 2016. Both assaults in Taiwan took place at the house she shared with her second husband, [Mr A]. The applicant left Taiwan in 2017. [Mr A] passed away in 2018.
Adopting the language of the High Court in Guo, the ‘cycle of regularity’ is that the applicant has suffered the relevant ‘significant harm’ twice in the last 24 years and the most recent incident took place in 2016. Two significant ‘new events’ have occurred since then, namely, the applicant has been continuously absent from Taiwan for 7+ years and [Mr A] has been deceased for 6+ years. There is no evidence one way or the other that the Ex has ever returned to Taiwan. However, I consider if the Ex had tried to find the applicant in Taiwan after [Mr A’s] death, then he would have ascertained that [Mr A] had passed away and the applicant was nowhere to be found. In the circumstances, I am satisfied that the ‘cycle of regularity’ – which was already extremely infrequent – has been distorted by the passage of time, the applicant’s prolonged absence from Taiwan, and [Mr A’s] death, to such an extent that the probability of the recurrence of the ‘harm’ in future is very low.
Moreover, if the applicant returns to Taiwan, she will not resume living in the same house where the Ex found and harmed her on the previous two occasions, and she will be free to settle in an entirely different area of a country with a total population size of over 23 million. I consider this factor further reduces the possibility of a recurrence of the ‘harm’ in the future because it is very unlikely the Ex will be able to find the applicant in Taiwan again even if he wanted to.
Consequently, without seeking to diminish the past harm experienced by the applicant, I find the risk that she will suffer ‘significant harm’ in the reasonably foreseeable future as a result of being removed from Australia to Taiwan is remote and speculative. Based on the state of the evidence before me, I am simply not satisfied that there are substantial grounds for believing the applicant faces the requisite level of risk – that is, a ‘real risk’ – and, as such, she is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
The applicant has not claimed, and there is no evidence to the effect, that she is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act, and who holds a protection visa.
Nevertheless, I have considered ss 36(2)(b) and (c) in the applicant’s case and I determine that she does not meet these criteria either.
CONCLUSION
I conclude the applicant is not eligible for a protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jessica Edis
Member

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

[2024] AATA 2573

14 June 2024

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