1924554 (Refugee) - [2024] AATA 3811

1924554 (Refugee) [2024] AATA 3811 (12 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1924554
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Donald Gordon
DATE:12 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 August 2024 at 2:00pm
CATCHWORDS
REFUGEE – Protection Visa – Taiwan – involvement in an earthquake compensation protest – cousin’s imprisonment in Taiwan for the earthquake protest – no such earthquake in the nearby years of 2007 that matched the applicant’s claims and evidence – claim is a fabrication and untrue – credibility concerns –– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 14 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Taiwan, applied for the visa on 5 December 2018.
The delegate refused to grant the visa on the basis that:
a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicant has a well-founded fear of persecution, in that there is not a real chance that, if the applicant returned to their country of nationality, the applicant would be persecuted on account of their race, religion, nationality, particular social group or political opinion.
b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicant is not a person 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 applicant being removed from Australia to their country of nationality, there is a real risk that the applicant will suffer significant harm.
The applicant appeared before the Tribunal on 9 August 2024 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
ISSUE
The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:
a.The refugee criterion in s 36(2)(a) of the Act; or
b.The complementary protection criterion in s 36(2)(aa) of the Act; or
c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non-citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant.
For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed.
COUNTRY OF NATIONALITY
The Tribunal finds the applicant’s identity and nationality are confirmed by his passport, national identity card and recorded personal particulars.
The Tribunal finds that the applicant is a citizen of Taiwan, which is also his receiving country for the purpose of his protection claims and assessments.
On the evidence before the Tribunal, the Tribunal finds the applicant does not have a right to reside in a country other than Taiwan and therefore s 36(3) of the Act is not applicable.
THE PROTECTION VISA APPLICATION
The Tribunal has before it the protection visa application form lodged by the applicant on 05 December 2018.
The applicant in his protection visa application form seeks protection in Australia so he does not have to return to Taiwan based on a fear of being imprisoned for protesting the lack of government compensation for his cousin’s apartment that was damaged during an earthquake.
HEARING BEFORE THE TRIBUNAL
The applicant attended before the Tribunal to give evidence and make submissions in support of his claims for protection.
The applicant did not call any supporting witnesses.
The applicant did not tender any documentary material going towards his claim.
The applicant gave sworn evidence as follows.
The applicant was born in Taiwan.
As at the date of the hearing before the Tribunal, he was [age] years old.
The applicant’s father is alive, but his has mother passed away. He has a younger sister in Taiwan.
He attended primary and high school, then went to collage and studied [which] he completed when he was [age] years old.
He could not find employment in his career and the salaries were low, so he worked in a shop [from] 2012 to 2016. Then he came to Australia in 2017.
The Tribunal asked the applicant to address his protection claims.
The applicant stated that police in Taiwan were looking for him, so he quit his job at the [shop] and escaped to Australia in 2017.
The Tribunal asked the applicant why he quit his job and came to Australia. The applicant replied that an earthquake occurred, and many properties collapsed. He was living with his cousin [and] the building his cousin was in also was badly damaged in the earthquake. He and his cousin participated in a demonstration protesting the distribution of compensation after the earthquake as many other people had received compensation, but his cousin had not.
The Tribunal asked the applicant as to when the earthquake had occurred. Initially the applicant said he was not sure and then he took time to pause, think and consider. The applicant then stated he thought the earthquake happened in 2007 when he was [age] years of age.
The applicant stated he was living with his cousin as he had moved out of his family home as his father did not have a job and was gambling.
In the aftermath of the 2007 earthquake, the applicant started to protest.
The Tribunal said to the applicant that the earthquake occurred in 2007 and he left Taiwan and came to Australia in 2017. That for approximately 10 years from 2007 to 2017 no harm had occurred to the applicant in Taiwan. The applicant agreed that no harm occurred to him as he was still studying and not an adult yet so the police did not look for him.
The Tribunal said to the applicant that by 2009 he would have been an adult and yet the police did not look for him. The applicant replied that he was still studying, and he was not living in his registered area so the police could not find him.
The Tribunal said to the applicant that it was difficult to believe an advanced police force such as in Taiwan would not be able to locate the applicant simply because he was studying and living with his cousin. The applicant replied that there were many people involved in the protest and he was not the leader.
The Tribunal said to the applicant that it seemed by him saying he was not the leader of the protest he was also suggesting that he had a minor role in the protest and that is why the police were not looking for him. The applicant replied that the police were looking for him as his cousin was a member of the residential building and people including his cousin were arrested.
The Tribunal said to the applicant that the point was that his cousin was arrested and not the applicant was because the applicant had a minor part to play in the protests. The applicant replied that he had no idea what his cousin may have said about him when his cousin was taken into custody.
The applicant said that in 2016 the police came and threatened him at his work. This was the reason he then left for Australia in 2017. The police asked him why he was there with his cousin protesting in 2007. The applicant said he told the police in 2016 because of the earthquake many buildings collapsed, and some got compensation, but his cousin did not get compensation from government and hence he protested.
At the 2016 questioning by the police at his place of work, the applicant said he sensed something was wrong and he made an excuse to visit the toilet and escaped from the police. Then from 2016 till his arrival into Australia, he hid in the remote mountains of east Taiwan where he managed to evade police capture.
The Tribunal said to the applicant that it did not seem believable that the earthquake happened in 2007, then the police almost 10 years later would turn up at his place of work to question him about it in 2016. The applicant replied he was also surprised the police came looking for him after so long, and he did manage to escape from the police.
The Tribunal said to the applicant that for all the effort the police made almost 10 years later in 2016, that it did not seem believable the applicant managed to exit the airport in 2017 to come to Australia without the police stopping him. The applicant said maybe it was because he did not commit any serious crime like murder.
The Tribunal asked the applicant about his cousin. The applicant replied that from 2007 to 2009 he kept contact with his cousin. In 2009 his cousin was sentenced to prison and his cousin told him to stop visiting him as his cousin was afraid the applicant might get arrested.
The Tribunal asked why the police did not arrest the applicant from 2007 to 2009 when he was visiting his cousin in custody. The applicant said that maybe it was because he was young and at that time he did not know anything.
The applicant was not sure how long his cousin was jailed for and his present status.
The applicant said that after the earthquake, he lived in a shelter in a stadium for a few months then managed to rent an apartment.
The Tribunal asked the applicant how he managed to afford an apartment when he was [age] years of age. The applicant replied that while visiting his cousin in jail, his cousin told him where he could find his cousin’s ATM Card and to use the ATM Card to pay for rent. From 2008 to 2011 he used his cousin’s ATM Card to pay for rent which was about $200 AUD per month for a small room. His cousin also gave him so more money from jail in 2017 accessed by the ATM Card.
The Tribunal said to the applicant that it was difficult to believe he was able to use his cousin’s ATM Card till 2017 to pay rent. The Tribunal pointed out that usually an ATM Card would not be valid for so long, almost over 10 years.
The applicant said he was not in contact with his cousin as his cousin told him to keep away to avoid the police. He did not know if his cousin was out of jail as at the date of the Tribunal hearing.
The applicant was worried that if he went back to Taiwan, the police would put him in jail.
CREDIBILITY – LEGAL PRINCIPLES
The applicant’s evidence including his responses to the Tribunal’s questions at the hearing in relation to his claims raises issues going to credibility.
Notably the Tribunal raised with the applicant throughout his evidence that belief and credibility were significant concerns for the Tribunal. The Tribunal made sure to ensure that the applicant understand that the Tribunal may not believe the applicant’s evidence and the credibility of the claim was in issue.
Credibility findings are a serious matter and ought to be undertaken cautiously in accordance with the applicable legal principles as adverse findings may result in an applicant’s evidence and claims not being believed which in turn may result in the decision under review being affirmed.
The Tribunal, before embarking on a credibility assessment sets out the relevant principles to be applied.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out, per MIEA v Guo & Anor.[1]
[1] (1997) 191 CLR 559 at 596.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision maker to establish the relevant facts, per Yao-Jing Li v MIMA.[2]
[2] (1997) 74 FCR 275 at 288.
A decision maker is not required to make the applicant’s case for him or her, per Prasad v MIEA.[3]
[3] (1985) 6 FCR 155 at 169-70.
It is for an applicant to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts, per Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat.[4]
[4] [2006] FCAFC 61 at [76].
The Tribunal is not required to accept uncritically any and all claims made by an applicant, per Randhawa v MIEA.[5]
[5] (1994) 124 ALR 265 at [278].
In determining whether an applicant has a well-founded fear of persecution, the Tribunal may need to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events, per Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[6]
[6] (1996) HCA 6 per Brennan CJ, Toohey, McHugh and Gummow JJ at [51].
Where the Tribunal is not confident that an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question per MIMA v Rajalingam.[7] The Tribunal must not foreclose reasonable speculation about the chances of a hypothetical future event occurring.[8]
[7] (1999) 93 FCR 220.
[8] AEY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 562
The Tribunal is also mindful of the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status which states that ‘if the applicant’s account appears credible, he (or she) should, unless there are good reasons to the contrary, be given the benefit of the doubt’ and ‘the benefit of the doubt, should, however only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility . The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts’.[9]
[9] United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at [196] and [203], available at >
In determining credibility, the Tribunal must not take an over-stringent approach that may result in an unjust exclusion of a portion of evidence, per Guo v MIEA; Pan v MIEA.[10]
[10] (1996) 64 FLR 151 per Foster J at 194.
The Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, per Selvadurai v Minister for Immigration and Ethnic Affairs.[11]
[11] Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J.
Even where it is reasonably open for the Tribunal to find that inconsistent evidence has been given, the significance of that inconsistency and the weight to be attached to it needs to be assessed. This requires consideration of the significance of the inconsistency having regard to an applicant’s case as a whole and whether the inconsistency is on a matter central to an applicant’s case or peripheral and involves an objectively minor fact. Consideration should also be given to the particular challenges facing asylum seekers in giving their evidence, that they may reasonably expect the opportunity to elaborate their claims at a hearing and whether there is a reasonable explanation for the inconsistency, per AVQ15 v Minister for Immigration and Border Protection.[12]
[12] [2018] FCAFC 133 at [28].
CORROBORATIVE MATERIAL ANALYSIS
The Tribunal asked the applicant if he had any material about the earthquake in 2007 or the ensuing protests such as articles or media reports. The applicant stated neither did he check for such material and neither did he think to keep such evidence.
The Tribunal asked the applicant if he still had the ATM bank card of his cousin that he managed to use for approximately 10 years. The applicant stated he did not have the ATM bank card.
The Tribunal asked the applicant if he had the rental agreement for his flat in Taiwan. The applicant said the document was with his landlord.
The Tribunal asked the applicant whether he had any record or documents about his cousin’s imprisonment in Taiwan for the earthquake protest. The Tribunal gave an example of a court order or prison details. The applicant said he had no such documents.

Notably in his protection visa application, the applicant stated he wrote an ‘open letter to express the dissatisfaction with the government’, however he was not able to produce this letter or speak to its contents.
2007 TAIWAN EARTHQUAKE EVENT ANALYSIS
The applicant said the earthquake occurred in 2007 and there was significant building damage, protests, and government persecution by imprisoning protestors as a result.
However, an on-line search does not show any earthquake in 2007 that caused significant building damage and protests.[13]
[13] List of earthquakes in Taiwan does not show a registerable earthquake in 2007 - See also >
The ABC News reported a set of tremors in 2007 but no significant building damage, fires, deaths or protests.[14]
[14] ABC News - >
Notably the applicant in his protection visa application had stated that the earthquake was of such magnitude that ’20 layers of residential buildings collapsed, killing at least 5 people.’ That the ‘earthquake also triggered a number of fires’. However, neither the applicant was able to speak to these events he wrote about, nor was he able to produce any material that would have corroborated these events. The Tribunal’s own examination of on-line material did not reveal such an earthquake in 2007.
In fairness to the applicant, the Tribunal also examined the events of the 2006 earthquake in Pingtung, Taiwan however the damage and the location does not corroborate with the applicant’s claims.[15]
[15] See also >
The Tribunal does not accept the applicant’s claim that an earthquake occurred in Taiwan in 2007 that caused significant building damage, fires, and deaths.
Even discounting the exact date and giving the benefit of the doubt, there was no such earthquake in the nearby years of 2007 that matched the applicant’s claims and evidence.
ANALYSIS OF EARTHQUAKE COMPENSATION PROTEST CLAIM
The Tribunal refers to the evidence given by the applicant in support of his claim for protection based on his compensation protest after the earthquake in 2007.
The Tribunal analyses the parts of the applicant’s evidence that caused the Tribunal to have concerns with the credibility of this claim.
The applicant said he visited his cousin in jail between 2007 and 2009 and that his cousin then told him to stop visiting and stop having any contact. However later in evidence he said his cousin in 2017 gave him some further money. The cousin would have had to make some contact with the applicant to advance him the money in 2017. This contradiction was unexplained and not believable.
Despite the applicant saying the police were after him since the 2007 earthquake, he managed to visit his cousin in jail between 2007 and 2009. The Tribunal does not believe that the authorities would have let the applicant visit his cousin over two years without taking action against the applicant.
The earthquake occurred in 2007 and he left for Australia in 2017. However, in this approximate 10-year period, he was not arrested by the police. This despite claiming to have visited his cousin in prison between 2007 and 2009, and also departing the airport in 2017. The Tribunal does not believe that the applicant, if he was wanted by the authorities, would have been able to freely visit his cousin in prison or depart the airport freely.
Despite his claim being based on the earthquake and earthquake compensation protests, when asked by the Tribunal what year the earthquake occurred in, the applicant was not sure, and paused and had to think. For such a critical and central event, the applicant was not sure of the year of the earthquake. The Tribunal had the advantage of observing the applicant and the applicant was not sure of when the earthquake occurred. This Tribunal does not believe that such a central and important single event could be forgotten.
Despite the police locating him in 2016 in his place of work, he managed to escape to a remote area and he was not stopped on his exit at the airport in 2017. For being wanted for questioning in 2016, escaping the police and hiding out, he was yet permitted to depart Taiwan in 2017. The applicant said this was because he had not committed a serious crime such as murder. The Tribunal does not believe that if the applicant escaped police questioning in 2016, that he would have been freely permitted to depart at the airport in 2017. Notably the applicant also departed and re-entered Australia in July 2018.
It does not seem believable that if the police were so intent on questioning the applicant for an earthquake compensation protest in 2007, that they would leave him due to his age or schooling, then not following up when he turned 18 in 2009, or allow him to pass freely to visit his cousin in custody between 2007 and 2009, then question him in 2016 yet have him escape and not arrange to locate him or have in place security measures prohibiting his departure in 2017.
On the basis of the above credibility concerns, the Tribunal does not believe that the applicant has a genuinely credible claim that the authorities in Taiwan are seeking to harm the applicant due to his involvement in an earthquake compensation protest in 2007. Even discounting the exact date and giving the benefit of the doubt, there was no such earthquake in the nearby years of 2007 that matched the applicant’s claims and evidence. The applicant’s claims and evidence of the authorities seeking to locate him and imprison him have been found not to be credible.
The Tribunal finds that the applicant’s claim is a fabrication and untrue. It has been created by the applicant to seek protection unlawfully.
The Tribunal will not assess the claim against the protection criterion as it is a fabrication.
FINDINGS OF FACT ON THE EVIDENCE
The Tribunal, after hearing the applicant and considering the material before it, makes the following findings of fact.
The Tribunal accepts the applicant is from Taiwan.
The Tribunal accepts he completed his schooling but could not find suitable employment in his field.
The Tribunal accepts the applicant worked in a [shop] from 2012 to 2016.
The Tribunal accepts in 2017 the applicant came to Australia.
The Tribunal does not accept that an earthquake as claimed by the applicant occurred in 2007. Even discounting the exact date and giving the benefit of the doubt, there was no such earthquake in the nearby years of 2007 that matched the applicant’s claims and evidence.
The Tribunal does not accept that the applicant was involved in an earthquake compensation protest in 2007.
The Tribunal does not accept that the authorities in Taiwan are seeking to harm the applicant due to his involvement in an earthquake compensation protest in 2007.
COUNTRY INFORMATION
The Tribunal sets out the relevant country information for Taiwan that was also discussed with the applicant for their comment and response.
Taiwanese democracy is robust and free. Elections are fair and free.[16] In January 2020, President Tsai Ing-wen of the DPP was elected to a second four-year term in a landslide victory.[17] The Tribunal suggested to the applicant that the progressive change in government would indicate that his fears from a 2007 earthquake protest would not be acted upon by the new democratic government. The applicant agreed. However, the applicant then stated that he had a stable life in Australia and if he were to return, there were many uncertainties such as the difficulty in finding a new job. He stated the government might still prosecute the people who protested due to the 2007 earthquake.
[16] 'Freedom in the World 2023 Taiwan', Freedom House, July 2023, A2, 20230725102014; 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.8-9, 20220224094729.
[17] 'In a blow to China, Taiwan’s president coasts to a second term', The Economist, 11 January 2020, 20200605121015; 'Taiwan President Tsai Ing-wen Begins Her Second Term', The Diplomat, 21 May 2020, 20200605121745.
Protests and public political debate occurs regularly and freely. Protests and demonstrations occur on a regular basis in major cities, particularly during elections, and rarely become violent.[18] The applicant agreed that the present political climate in 2024 was more open to public protests.
[18] ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 7 July 2023, 20230727101600.

100. Police are effective and the crime rate is low. Excessive use of force by police is rare, and lawyers are allowed to monitor interrogations to prevent torture.[19] Taiwan’s court system is free and fair. Courts are independent, fair and generally free of corruption.[20] All defendants have the right to a lawyer and to be present at trial.[21] The applicant stated he did not think the court system was fair. He did not think police corruption was low.
[19] 'Freedom in the World 2023 Taiwan', Freedom House, July 2023, F3, 20230725102014.
[20] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729.
[21] 'Country Reports on Human Rights Practices for 2022 - Taiwan', US Department of State, 20 March 2023, p.3, 20230321161004.
REFUGEE CRITERION ASSESSMENT

To satisfy the refugee criterion in the Act, the applicant must satisfy the Tribunal that they are a refugee pursuant to s 36(2)(a) of the Act. Relevantly this requires the applicant to come within the definition of s 5H(1)(a) of the Act which defines a refugee as a person who has a nationality and is outside their country of nationality and is unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of persecution. Section 5J(1) of the Act further provides that 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 and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country along with the requirements set out in ss 5J(2)–(6) and ss 5K–5LA of the Act.

102. In Chan Yee Kin v MIEA the High Court held that a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility, and a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[22]
[22] (1989) 169 CLR 379.

The reasons in s 5J(1)(a) must be the essential and significant reasons for the persecution per s 5J(4)(a), and per ss 5J(4)(b)–(c) the persecution must involve serious harm and systemic and discriminatory conduct.

104. Section 5J(5) of the Act defines instances of serious harm as including a threat to a person’s life or liberty, significant physical harassment of the person, significant physical ill-treatment of the person, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist and denial of capacity to earn a living of any kind, where the denial threatens the person’s capacity to subsist.
105. The applicant’s claims of persecution based on the authorities in Taiwan are seeking to harm the applicant due to his involvement in an earthquake compensation protest in 2007 have been found not to be credible.
106. Even discounting the exact date and giving the benefit of the doubt, there was no such earthquake in the nearby years of 2007 that matched the applicant’s claims and evidence. The applicant’s claims and evidence of the authorities seeking to locate him and imprison him have been found not to be credible.
107. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution.
108. The Tribunal is not satisfied that the applicant meets the refugee criterion under s 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CRITERION ASSESSMENT

As the applicant has not met the criterion to be considered a refugee under s 36(2)(a) of the Act, the Tribunal has proceeded to consider whether the applicant meets the complementary protection criterion under s 36(2)(aa) of the Act.

110. Section 36(2)(aa) of the Act requires the applicant to satisfy the Tribunal that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia and returning to Taiwan, there is a real risk he will suffer significant harm.
111. Section 36(2A) of the Act exhaustively defines that a person will suffer significant harm if they are 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.
112. In MIAC v SZQRB it was held that the ‘real risk’ test under the complementary protection criterion imposed the same standard as the ‘real chance’ test under the refugee criterion.[23]
[23] [2013] FCAFC 33 at [246].
113. The applicant’s claims of persecution that the authorities in Taiwan are seeking to harm the applicant due to his involvement in an earthquake compensation protest in 2007 have been found not to be credible. Even discounting the exact date and giving the benefit of the doubt, there was no such earthquake in the nearby years of 2007 that matched the applicant’s claims and evidence. The applicant’s claims and evidence of the authorities seeking to locate him and imprison him have been found not to be credible.
114. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk he will suffer significant harm.
115. The Tribunal is not satisfied that the applicant meets the complementary protection criterion under s 36(2)(aa) of the Act.
CONCLUSION
116. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION

119. The Tribunal affirms the decision not to grant the applicant a protection visa.
Donald Gordon
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.
…

at [88].