1834018 (Refugee) - [2022] AATA 1276

1834018 (Refugee) [2022] AATA 1276 (11 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1834018
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Jane Marquard
DATE:11 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 March 2022 at 9:06am
CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from gangsters and loan sharks – low-level gang membership and father’s and uncle’s gambling debts – harassment, threats and beatings of applicant and mother – no action by police – credibility – inconsistent and implausible claims and evidence, and no corroborative evidence – residence and work history – delay in applying for protection – applied after holding two student visas – no contact with father since parents divorced – no targeting of or harm to siblings – voluntary return to home country – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5J(1), 5H(1), 36(2)(a), (aa), 65, 420, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Acts Interpretation Act 1901 (Cth), ss 15AA, 15B
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 18B, 25
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
Applicant A v MIEA (1997) 190 CLR 225
ARG15 v MIBP [2016] FCAFC 174
AVQ15 v MIBP [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v MIEA (unreported, FCA, 7 November 1997)
EJC18 v MICMSMA [2020] FCCA 3171
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Teoh (1995) 183 CLR 273
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMIA v QAAH of 2004 (2006) 231 CLR 1
MIMA v Rajalingam (1993) 93 FCR 220
MIEA v Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437
Selvadurai v MIEA (1994) 32 ALD 347
Sivalingam v MIMA [1998] FCA 116
Sundararaj v MIMA [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816
SZOXA v MIAC [2011] FMCA 298
SZTOO v MIBP [2015] FCCA 1631
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
BACKGROUND TO THIS APPLICATION FOR REVIEW

The applicant is a [Age]-year-old man from Taiwan.
He first arrived in Australia [in] June 2014 on a TZ-417 working holiday visa granted offshore. He was granted an extension to this visa on 7 February 2015.
He departed Australia on [Date 1] October 2015 and returned on [Date 2] October 2015. He departed Australia again [in] June 2016. On 9 June 2016 he was granted a TU-572 student visa. He returned to Australia [in] July 2016.
The applicant applied for a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) on 2 August 2018.
A delegate of the Minister for Home Affairs refused to grant the visa on 26 October 2018. The matter is now before the Administrative Appeals Tribunal (the Tribunal) for review.[1]
[1] Section 25, Administrative Appeals Tribunal Act 1975 (Cth).
The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. Details of the relevant law are set out below, but in summary, in order to meet the refugee criterion, the applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criterion there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to his or her home country there is a real risk of significant harm.
SUMMARY OF FINDINGS
For the reasons set out below, the Tribunal has decided to affirm the decision under review.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
Australia acceded to the 1951 Convention relating to Status of Refugees[2] in 1954 and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions.[4] For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[5]
[2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).
[3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[4] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).
[5] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) of the Act. 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).
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J (2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).
The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at [429] (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs 190 CLR 225 (Brennan CJ).
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 of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, 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) of the Act, which are extracted in Attachment A to this decision.
The applicant must satisfy the statutory elements
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act.
The applicant must satisfy the Tribunal that all of the statutory elements are made out (Abebe v Commonwealth of Australia197 CLR 510).
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to seek out evidence to support an applicant’s claim (ABT16 v Minister for Home Affairs [2019] FCA 836) or make out the case for the applicant (Prasad v MIEA (1985) 6 FCR 155).
Mandatory considerations
In accordance with Ministerial Direction No.84,[6] made under s 499 of the Act, the Tribunal must take account of the ‘Refugee Law Guidelines’[7] and ‘Complementary Protection Guidelines’ [8]prepared by the Department of Home Affairs (the Department), and 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. While the Tribunal should have regard to policy, as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[9]
[6] Ministerial Direction No.84, Consideration of Protection Visa applications, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, 24 June 2019.
[7] Policy – Refugee and humanitarian – Refugee Law Guidelines, Section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines), Department of Home Affairs.
[8] Policy – Refugee and humanitarian - Complementary Protection Guidelines, Department of Home Affairs.
[9] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Principles of interpretation and rules of evidence
The Tribunal must apply Australian principles of statutory interpretation and in particular, the Acts Interpretation Act 1901 (Cth) (the Interpretation Act).[10] Section 15AA of the Interpretation Act requires that regard must be had to the purpose or object of the Act, and Section 15AB permits recourse to extrinsic materials including the explanatory memorandum or second reading speech and any treaty or other international agreement referred to in the Act. Australian courts will favour a construction of the Act and Regulations which conforms to Australia’s obligations under an international treaty, or convention.[11]
[10] MIMIA v QAAH of 2004 (2006) 231 CLR 1.
[11] MIMIA v QAAH of 2004 (2006) 231 CLR 1; MIEA v Teoh (1995) 183 CLR 273.
International jurisdiction can provide guidance,[12] as can the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (the Handbook)[13] although the Handbook is not binding.[14]
[12] See for example Chan v MIEA (1989) 169 CLR 379 at [392], Somaghi v MILGEA (1991) 31 FCR 100 at [117], NBGM v MIMIA (2006) 150 FCR 522.
[13] UNHCR, re-issued February 2019.
[14] SZOXA v MIAC [2011] FMCA 298.
The Tribunal must act according to substantial justice and the merits of the case, and is not bound by technicalities, legal forms or rules of evidence,[15] although these rules are used for guidance where relevant.
[15] Section 420 of the Act.
EVIDENCE CONSIDERED IN THIS REVIEW
The Tribunal has considered evidence and submissions made to the Department, other Departmental records pertaining to the applicant, evidence to this Tribunal, and independent sources about Taiwan.
Summary of evidence in Department files
The applicant provided evidence to the Department in his application and accompanying documents.
He said that he is from Nantou Country, Taiwan. His parents, a brother and sister live in Taiwan. He said that after five years in Australia of work, holiday and study, when he thinks back on the experiences in Taiwan, he fears returning to his home country because of being ‘persecuted and harmed by local gangsters and family members, the harm was so seriously that the influences had followed me over the years. If I returned to Taiwan, I would still face the trauma and nightmare destructing my life. Therefore I had no choice by to apply for refugee at Australia so that I could avoid being harmed’.
He claimed that he had an unhappy childhood. He said that his father was a gambler, and had debts, and his house was taken by the bank. He said that ‘people came to the house’ demanding money and threatening and hitting his father. He said that his parents quarrelled a lot as his mother tried to borrow more to pay the debts. He said that his parents divorced when he was in primary school and he and his siblings lived with his mother. His father lived alone.
He claimed that he was bullied at school as he was stressed by his father and acted strangely. He stated that he became involved with a gang who bullied others and thought about stealing. He said that they ‘did bad things like a gangster’ and he found it hard to get away from the group. He said he tried to get away but was found by them after several years and ‘interfered’ with by them.
He claimed that the people to whom his father and uncle owed money called him to find out where his father was, and ‘yelled’ at the applicant.
He said that he finished high school in [Year] and was employed at a shop from 2010 to 2011 but prior to and after this, he was unemployed.
He said that he fears that if he returns to Taiwan, he will be threatened by the gangs again and will face trauma and nightmares destroying his life.
Evidence before the Tribunal
The applicant appeared before the Tribunal on 24 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal provided the applicant with an overview of the processes of the Tribunal and relevant legal principles. The evidence of the applicant is referred to in the findings and partly summarised below.
The applicant confirmed that he was born in Nantou County in Taiwan in [Year]. He told the Tribunal that Nantou is a small town with a number of processing factories. His father ran [a business] and his mother helped him in the business. They have now closed the business and they divorced when the applicant was in school. He does not know what his father is doing, as he has little contact with his father. He is not in contact with his father because when he was young, in about 2005 or 2006, his father had been gambling and his business failed and he borrowed off high-interest loans. He said that in around 2008 his father had to run away to Kaohsiung, which is about three or four hours away, and hide from his creditors. He was asked how he knew he was there, and he said that at that time he was in contact with him.
The applicant keeps in contact with his mother, who is living alone. His brother and sister have lived and worked in [Country] since 2017 or 2018. They are holders of [visas] in [Country]. He said that prior to the pandemic his brother and sister visited his mother in Taiwan.
The applicant has grandparents and maternal and paternal uncles living in other parts of Taiwan. He does not keep in touch with his relatives.
He said that he lived with his mother and siblings before he came to Australia. His mother rented a house. She has now moved houses within the same small town.
The applicant told the Tribunal that he finished high school in Nantou in [Year] but had no further education. After that he served in the military for one year and then he went to the Taijung, which he called ‘the big city’, to work. Taijung is about one-and-a-half hours away from Nantou. He worked as [an Occupation] for six years in different [Workplaces] until he came to Australia.
He said that he decided to travel to Australia after his friend told him about working holiday visas. He said that when he lived in Taiwan, his father’s creditors looked for him. This started in 2012 and they continued to look for him until he departed for Australia. He said that he moved from one [Workplace] to another when his father’s creditors found him. He said that they ‘would come and make a scene and would interrogate me and ask me where my father was’. He said that three to five people would come to the [Workplace] and threaten him outside a shop, that they would beat him up and pressure him to pay money. They also asked where his father was. He would tell them he had no contact with his father.
The Tribunal asked the applicant if he was harmed in these incidents. He replied, ‘not at my workplace because others at the workplace said they would report him to police’. He said that they came every three to four days so he could not work in a normal way and the employer would ask him to leave. He said that the creditors would go to his home and find him and would pour paint on the door. He said that because of this he had to change his residence many times.
The applicant was asked if he was ever physically harmed by his father’s creditors. He said that when they came to his home, they beat him up. This started when he was in high school and they had to move to a remote place in Nantou.
The Tribunal asked the applicant how many times the creditors visited his house in Nantou, and he replied ‘many’. Asked if he could provide an estimate, he said that it was roughly 30 times. He said that ‘sometimes they beat us and poured paint on the door and sprayed words such as ‘pay the loan’. They threatened us that if we did not pay they would beat us up so we would have to go to hospital.’ He said that they beat him up and they also beat his mother, and they were very afraid. He said that they tried to report it to the police but the police ‘did not give it much action’. Asked why the police did not take action if there were physical assaults involved, he said that the police ‘tried to find them and could not find them’. He said that he thought that the creditors bribed the police because the police and gangsters have common interests and ‘under the table’ deals in Taiwan.
The applicant said that he had to seek medical attention from the beatings. He said that he is not sure if he still has medical reports. They are in Taiwan. He said he would need time to get medical reports. The Tribunal said that he had had since 2018 to prepare for the hearing, but would provide a week for him to obtain reports. He said that he had tried to get medical reports but was not able to obtain them. No medical reports were provided to the Tribunal.
The applicant said that the gangsters visited his workplace about 10 to 15 times. They visited his residence in Taijung about 15 to 20 times.
He was asked if his siblings also faced problems from the gangsters prior to leaving for [Country]. He said that his brother did, but his younger sister was studying.
He said that he reported the matters to the police about five or six times in order that there be a record of the incidents, but they got no feedback. Later they ‘found the police were not taking much action’.
He said that he did not pay the creditors any money. The Tribunal asked the applicant why the creditors would keep coming back so many times if he could not pay them. He said that they ‘keep coming back to pressure you if you don’t pay’. He said that he does not know if his mother tried to repay any money. His grandmother gave his mother a property and he thinks she used some money to repay some of the loan. He was asked if his mother has had further contact with them. He said that after he left the country she moved and is in hiding.

He was asked how he thinks the gangsters found him in Taichung after he moved there from Nantou. He said that he would sometimes return to Nantou, and they would ‘stalk him’. The Tribunal asked the applicant why these gangsters would not find his father, if they were able to locate the son. He said that his father was hiding. His mother did not want them to find his father, as he had been badly injured by them when they were living together. He said that after this his father had tried to commit suicide and his mother stopped him.
The Tribunal asked the applicant why the debtors would pursue the applicant as he had not been living with his father and was not involved in the loan and did not repay them at all. He said that if a father runs away then creditors come after the family members to repay and ‘make threats and go to workplaces and make a scene’.
The applicant said that he lost contact with his father in about 2011 when he finished military service. At that time he was not sure where he was. He was asked if his brother or sister were in contact with his father. He said that he did not think so. He said that he is not sure where his mother is. He thinks his father is in Kaohsiung but could be ‘somewhere close by’.
The applicant was asked by the Tribunal if the family asked other family members for help to repay the loans. He said that initially his mother borrowed money from relatives, but later they did not want to be involved.
The applicant said that he travelled to Australia on a working holiday visa as it was the quickest way to leave Taiwan. He found out about these visas ‘from the internet’. He did not use an agent, and applied himself. He was asked what documents he needed. He said that he just had to provide basic information and pay a fee. He was asked if he was concerned about leaving his mother with the problems of the gangsters. He said that he was, and she is in hiding.
He was asked why he fears returning to Taiwan. He said that he is worried that if he returns and goes to see his mother, he will be found and beaten up. He was asked if there was any other reason he fears returning to Taiwan. He said that when he was discharged from military service, he came to know a few ‘gangster friends’ and they ‘are not nice people’. He said that he would visit them at ‘their place’. He was asked why he is afraid of returning because of these gangsters. He said that the most important reason he fears returning, is that the high interest loan sharks would harm him. He said that the gangsters ‘do drugs and get him to do bad things’. He was asked if he could refuse to get involved with them. He said that at the time he was rebellious and had few friends so thought they were his friends. He is worried that they would ‘get him to do bad things’.
The Tribunal asked the applicant if he would be safe from the gangs and loan sharks as these incidents occurred prior to 2014 such that with the passage of time there would be little interest in him. He said that ‘the gangster friends are not in contact with me however my father’s debt is not fully repaid’.
He was asked if he could move to a different part of the country to be safe from the individuals that he fears. He said that it is not possible in Taiwan as he had tried to do this.
He was asked if he could get the police to help him if he returned. He said that he turned to them for help but does not trust them anymore. He does not want to risk returning as it would make it worse and they will harm him.
He was invited to provide any further written or oral evidence or submissions. He said that he is worried about what would happen to him and wanted to provide evidence. He was given until 4 March 2022 to provide any further evidence. He said it was not enough time to get a document translated. The Tribunal noted that he had had since 2018 to prepare for the case but advised him that if he wished to get extra time he could request extra time by 4 March 2022. As at the date of this decision no further evidence had been provided to the Tribunal and the applicant had not requested further time to provide evidence.
FINDINGS AND REASONS OF THIS TRIBUNAL
Key issues for determination
In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:
·     Whether the incidents described by the applicant took place in Taiwan (findings of fact).
·     Whether the applicant fears persecution for a reason set out in the legislation.
·     Whether there is a real chance of serious harm or a real risk of significant harm.
These issues and other threshold issues are discussed below.
Providing an opportunity to be heard
The Tribunal exercised its discretion to hold the hearing by means of video and is satisfied that this format provided a real opportunity to be heard.
In exercising this discretion, the Tribunal took into consideration the legislative requirement that the Tribunal must pursue the objective of providing a mechanism of review that is accessible, fair, just, economical, informal and quick. The mechanism of review must also be proportionate to the importance and complexity of the matter and promote public trust and confidence in the decision-making of the Tribunal.[16] The Tribunal also had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020 and the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.[17]
[16] Section 420 of the Act and s 2A of the Administrative Appeals Tribunal Act 1975 (Cth).
[17] Issued under s 18B of the Administrative Appeals Tribunal Act 1975 (Cth).
The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant – most importantly that the matter should be heard expeditiously and there were restrictions imposed by the COVID-19 pandemic. There may have been significant delay to the matter if the hearing was not to be conducted by video.
The applicant confirmed that he could hear and see well. There was appropriate communication between all parties during the hearing. The Tribunal is satisfied that the hearing provided a real opportunity to give evidence and present arguments in the format utilised.
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’, or if they do not have a nationality, outside the country of former habitual residence. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country, or a country of former habitual residence.
The applicant has a Taiwanese passport. The Tribunal is satisfied on the basis of his passport and testimony that the applicant is a national of Taiwan, and that Taiwan is the receiving country for the purposes of the legislation.
Findings of fact
Taking a reasonable approach to fact-finding
When assessing claims the Tribunal must make findings of fact in relation to the claims made – in this case whether the applicant was targeted and assaulted by his father’s creditors and was the member of a gang. Asylum cases present particular complexities in regard to fact-finding. Applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Experiences in an applicant’s home country may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may be impacted by cultural or psychological issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[18] Assessment of credibility therefore is inherently difficult and at times can be based on imperfect perceptions of truth.[19] Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[20] An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[21]
[18] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, Fox v Percy (2003) 214 CLR 118.
[20] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511,< Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

The Tribunal is conscious and mindful that there may be factors that consciously or otherwise influence decisions.[22] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[23] in ensuring that the process of credibility assessment is reflective and fair. As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[22] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.
[23] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

The courts have suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[24] A similar approach is taken in the Department’s Refugee Law Guidelines[25] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’)[26], which provides useful guidance for this Tribunal. The Tribunal has also taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility,[27] which reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and should approach the assessment with an open mind.

[24] SZLVZ v MIAC [2008] FCA 1816.

[25] Policy – Refugee and humanitarian – Refugee Law Guidelines, Department of Home Affairs, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).

[26] UNHCR, re-issued February 2019 at [203–204].

[27] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, >

The Tribunal is not however required to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437). In this case, the Tribunal is not satisfied that the applicant’s evidence was generally credible such that he should be given the benefit of the doubt.[28] The Tribunal is not satisfied that the applicant was targeted and harmed by his father’s creditors as claimed, for the reasons set out below.

[28] SZLVZ v MIAC [2008] FCA 1816.

Firstly, the applicant’s evidence about the harassment by the creditors appears to be implausible, when considering the ordinary course of human experience. The applicant has said that his parents divorced while he was in primary school and he lived with his mother. He said that his father owed money in 2005 or 2006 which he was unable to pay back. At that stage the applicant was a school student. He said that his father ran away to another town in 2008. The Tribunal finds it unlikely that the creditors would target the applicant from 2012 onwards, given that this was some seven years after the loan was taken out, and the applicant was a child when the debt was incurred. Furthermore he had not been living with his father or in close contact with his father for any of that time.

Additionally, the applicant claims that the loan sharks found him in Taijung but were unable to locate his father who was hidden elsewhere. It does appear unlikely that the loan sharks would not have been able to find his father if they were able to locate the applicant in a different town.

It also seems unlikely that the creditors would target the applicant with such frequency (every three to four days) in total around 30 times while at home with his mother, 10 to 15 times at his workplace and about 15 to 20 times at his residence in Taijung, if he was not the debtor, and as he has said that he never gave them any money. If these attempts at intimidation did not result in any payments, it is unlikely that the creditors would have continued to harass him at this level. In his application and account of events to the Tribunal, the applicant did not suggest his mother, brother or sister were targeted even though his brother and sister were in the country until 2017 or 2018. It was only when the Tribunal put to him that they had not been harmed, which indicated that he would not be harmed, that he said that his brother was targeted, although he provided no details about this. He also provided new claims to the Tribunal when queried about this, that his mother had been assaulted and had to go into hiding. This appeared to be evidence made up ‘on the run’, as it was not a claim made previously.

The Tribunal acknowledges that fact-finding can at times be based on false assumptions about likelihood of events, however in this case, there are a number of elements which contribute to a finding that the circumstances he has described are implausible, particularly when considered with the other factors mentioned below.

Secondly, the applicant’s evidence has changed in the various accounts of what took place, which causes the Tribunal to question the veracity of his claims, as it is reasonable to assume that credible witnesses provide generally consistent evidence. In his application he claimed that he feared returning to Taiwan because of the gangs he had been involved in when living there. He claimed that he feared that they would entice him into bad behaviour. He did refer to his father’s debts, and the fact that loan sharks came to the house demanding money and hitting his father, and called him and yelled at him to find out where his father was, but the focus in his application was on his fear of gangs.

However his evidence to the Tribunal was significantly different, and in fact he said that his primary fear was from the loan sharks, rather than from the gangs. He provided new claims to the Tribunal, stating that the loan sharks beat him and his mother at their house, and harassed them on at least 30 occasions, threatening them with their lives and throwing paint on their house. He also told the Tribunal that he was harassed while living in another town at least 15 times in the same manner. He claimed that he had to hide, and so did his mother. None of these incidents were mentioned in his Department application where he only mentioned being yelled at by the debtors.

The inconsistencies were put to the applicant under the natural justice provisions in the legislation.[29] He said that what he had told the Tribunal was true. He said that he is very fearful that he and his family will be harmed. He said that he wrote the statement for his agent but is not sure what the agent provided to the Department.

[29] Section 424AA of the Act.

The Tribunal is not satisfied that the claims about harassment and harm from the creditors is true. The Tribunal finds that if these elements of his claim were true he would have referred to them in his Department application which was his first opportunity to make protection claims, or ensured that his agent included them in the application, as they were central to his claim for protection.

A further inconsistency was in regard to his employment. He told the Department that he finished high school in [Year] and was employed at a shop from 2010 to 2011 but prior to and after this he was unemployed. However he told the Tribunal that he was employed as [an Occupation] from 2011 to the time he left for Australia. Asked by the Tribunal to comment on this inconsistency, he said that when he was preparing the application he wrote about the different jobs and the agent said ‘do not write so much and make it simple’. The Tribunal does not accept this explanation as it was simple to state that he had worked as [an Occupation] during that time period. The fact that his evidence in this regard was inconsistent further undermines the credibility of his evidence generally.

Even within the Tribunal hearing, the applicant changed his evidence. He first told the Tribunal that he was living with his mother prior to coming to Australia. He later said that he was moving around different residences in Taijung due to the creditors harassing him and he and his mother had to go into hiding. It appeared that he was making up his evidence as the hearing progressed to persuade the Tribunal of the seriousness of harm he allegedly suffered.

The Tribunal recognises that psychological research on memory of trauma[30] suggests that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. Not all memory deficit correlates with lack of veracity, as research demonstrates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[31] In this case however, rather than some minor changes to his story, the applicant did not refer to central elements of his claims when he applied for the visa, and it is reasonable to assume therefore that he has later added these elements to bolster his claim. It is not a case where parts of the evidence can be accepted as referred to by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:

the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.
[30] M Conway, ‘Episodic Memories’ (2009) 47 Neuropsychologia 2305; J Herlihy, L Jobson, and S Turner, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’ (2012) 26 Applied Cognitive Psychology 661; C Brewin, ‘The nature and significance of memory disturbance in posttraumatic stress disorder’ (2011) 7 Annual Review of Clinical Psychology 203.
[31] H E Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law 469.

The Tribunal notes that instead, in this case, the applicant omitted key aspects of his claims in his application, and when considering the evidence as a whole,[32] it is clear that these aspects have been added to bolster his refugee claim. Additionally, the applicant changed the focus of his claims from fear of gangs to fear of creditors. The Tribunal has considered all evidence before it, in finding that the contradictions and omissions are material to the applicant’s claims and lead to an adverse finding of credibility.[33]
[32] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997) and the Migration and Refugee Division ‘Guidelines on the assessment of credibility’.
[33] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, >
Thirdly, the applicant returned to Taiwan for a visit in 2015. It is unlikely, if he was being hounded and threatened in the manner described, that he would have returned to the country for a visit. When asked about this, he told the Tribunal that he ‘hid’ in Taipei and only saw his mother once in the middle of the night. It does appear unlikely that he would have only visited his mother once, but in any event, the fact of his return does suggest that he did not have the fear he claims to have.
Fourthly, the applicant’s brother and sister have visited his mother in Taiwan, which indicates that they have not been harassed when they returned.
Fifthly, it appears unlikely that the applicant would not have been able to avail himself of police assistance if he was harassed, threatened and assaulted in the manner described and if his mother was also beaten. He said that they tried to report it to the police five or six times but the police ‘did not give it much action’. Asked why the police did not take action if there were physical assaults involved, he gave varying answers. He said that the police ‘tried to find them and could not find them’. He said that he thought that the creditors bribed the police because the police and gangsters have common interests and ‘under the table’ deals in Taiwan. The Tribunal acknowledges that at times police cannot find offenders and that there is some corruption in Taiwan, but notes that country information referred to later in this decision indicates that police are generally effective and that levels of corruption are low. The Tribunal does not accept that the applicant would not have been able to get some level of police assistance given the level and scale of the claimed harm.
Sixthly, the applicant has not provided corroborative evidence of the harassment by the creditors, or of the assaults. He has not provided photographs (for example of paint being thrown on the house), police reports, medical reports or corroborative statements from witnesses. The Department’s decision in this matter was in 2018 such that he had an extensive time period to prepare for the hearing. The Tribunal also wrote to him on 22 November 2018 and 25 January 2022 inviting him to provide written evidence but no such evidence was provided. The Tribunal also gave the applicant an extra period of time after the hearing to provide any extra evidence but no evidence was provided. While it is possible that not all of this evidence is available, it would be reasonable to assume that at least some of it could have been provided to the Tribunal.
The Tribunal is not required to accept uncritically claims made by an applicant[34] as the applicant is required to specify particulars of a claim and make out the statutory elements.[35] Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs(1994) 32 ALD 347 at [348]. Findings on credit are open to a Tribunal, provided that they are not tainted by unreasonableness and or subject to any failure to afford procedural fairness: ARG15 v Minister for Immigration and Border Protection[2016] FCAFC 174 at [83].
[34] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[1994] FCA 1253; MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155.
[35] Section 5AAA of the Act; Abebe v Commonwealth of Australia197 CLR 510.
In Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, Kirby J observed:
.. it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.
When considering the evidence cumulatively, for all the reasons set out above the Tribunal is not satisfied that the applicant was targeted by his father’s creditors on numerous occasions, assaulted, threatened and harassed at work and home. The Tribunal is not satisfied that his mother was assaulted by the creditors or that they threw paint on their homes on a number of occasions. The Tribunal is not satisfied that the applicant had to move around or hide while in Taiwan.
The Tribunal is satisfied that the applicant had friends in gangs while living in Taiwan, as this has been consistent evidence since his application.
The refugee criteria
Principles – well founded fear of persecution
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 themself of the protection of that country.[36]
[36] Section 5H(1) of the Act.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that 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
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear being persecuted for one of the stated reasons?
Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.
The Tribunal is not satisfied that the applicant fears being persecuted in Taiwan as the Tribunal is not satisfied that the applicant was targeted by his father’s creditors as claimed. It follows that the Tribunal is not satisfied that he would be targeted if he returned or that he fears returning for this reason. His father incurred the debts in 2004/5 when the applicant was a school student and not living with his father. The Tribunal is not satisfied therefore that the applicant would be targeted by the creditors if he returned, nor that he has a fear of being targeted by them.
The Tribunal is also not satisfied that he fears any harm in Taiwan (including from gangs) as the applicant only applied for protection in 2018 although he arrived in Australia in 2014. This indicates that he does not have a genuine fear of harm as it would be expected that if he had a genuine fear of serious harm he would have applied at the earliest opportunity. When asked about this at the Tribunal hearing, he said that he did not know about protection visas otherwise he would have applied. The Tribunal does not accept this explanation as he was familiar with the Department website, having applied himself for the working holiday visa. Furthermore, if he had a genuine fear it would have been expected that he would have made enquiries about protection.
This conclusion is reinforced by the fact that the applicant returned to Taiwan in 2015, indicating that he did not fear serious harm in Taiwan. At the hearing, the Tribunal asked the applicant why he returned to Taiwan in 2015 if he had a genuine fear of serious harm. He said that he went to visit his mother and ‘hid’ in Taipei and only visited his mother once in the middle of the night. As discussed earlier, the Tribunal finds it unlikely that he only visited her once, but in any event the fact of his return does suggest that he does not have a fear of being persecuted for one of the stated reasons.
Is there a real chance of serious harm if the applicant were to return to Taiwan?

100. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act provides an objective element to that concept;[37] not only must a person fear persecution, there must be a prospect of that fear being realised.
[37] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <UNHCR - Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees>
101. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[38]
[38] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p 171.
102. In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’.
103. The Tribunal has also taken into account the High Court’s guidance in MIEA v Guo (1997) 191 CLR 559, ‘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.’
104. The Tribunal is not satisfied that the applicant’s father’s creditors harassed or harmed the applicant when he was living in Taiwan, for reasons set out earlier in this decision. The Tribunal is also not satisfied that these creditors would seek out the applicant for harm if he returned to Taiwan in the reasonably foreseeable future, given that they have not done so in the past.
105. Even if the Tribunal were wrong on this, the Tribunal is not satisfied that there is a real chance of serious harm from the creditors or from gangs. Taiwan is regarded as having low rates of crime, with one of the lowest crime rates in the world. There is extensive CCTV coverage throughout Taiwan which deters criminal activity.[39] The United States Department of State assesses Taiwan as being a low threat location for crime.[40] A study in 2016 found a high level of satisfaction with the police by the community (72.9 per cent stating they were satisfied).[41] Taiwan is a stable democracy with robust institutions including independence of the judiciary and the country does well in preventing corruption.[42] The independent assessor, Transparency International in its annual index rates Taiwan highly on its corruption index, number 25 out of 180 countries.[43] It is unlikely therefore that the applicant would be harmed or harassed in the ways he fears, given that crime rates are low and there is effective protection available.
[39] Overseas Security Advisory Council, United States Department of State, ‘Taiwan 2020 Crime and Safety Report’, 17 March 2020.
[40] Overseas Security Advisory Council, United States Department of State, ‘Taiwan 2020 Crime and Safety Report’, 17 March 2020.
[41] Central News Agency, 22 February 2020, Bertelsmann Stiftung, ‘BTI 2020 Country Report’ Taiwan’, 29 April 2020
[43] Transparency International, ‘Corruptions Perceptions Index – Taiwan’, 2021.
106. The Tribunal has assessed whether there is a real chance of serious harm in the reasonably foreseeable future[44] by considering the totality of the evidence. Evaluation of chance cannot be reduced to scientific precision[45] but is based on common sense and the ordinary experience of humankind.[46] The Tribunal is not satisfied that there is a real chance of serious harm for the reasons set out above (Chan v MIEA (1989) 169 CLR 379).
[44] SZTOO v MIBP [2015] FCCA 1631 at [27].
[45] MIEA v Wu Shan Liang (1996) 185 CLR 259.
[46] MIMA v Rajalingam (1993) 93 FCR 220.
Findings on refugee criteria
107. The Tribunal is not satisfied for the reasons set out above that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.
Does the applicant meet the complementary protection criteria?
108. If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if there are 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 he or she will suffer significant harm: (‘the complementary protection criterion’).
109. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she 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. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
110. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that the applicant was harmed in the past in Taiwan or faces a real chance of serious harm for any of the reasons set out in the legislation. For the same reasons, on the basis of MIAC v SZQRB [2013] FCAFC 33 the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation.
111. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where 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. As set out earlier, Taiwan has low crime, an effective police force and impartial judicial system. Even if the applicant were to be targeted for harm the Tribunal is satisfied that he could obtain from the authorities of the country protection such that there would not be a real risk of significant harm.
112. Furthermore, if he were to get involved with gangs, this would be a choice. Where there is a choice to act, then the conduct is not a ‘necessary’ consequence of removal from Australia. In EJC18 v MICMSMA [2020] FCCA 3171, the court found that the Tribunal did not err in concluding that the applicants made the choice to pursue a property claim on their return to Pakistan.
Findings on complementary protection
113. 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 of significant harm.
CONCLUDING PARAGRAPHS
114. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is 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

117. The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

ATTACHMENT A - 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.
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