2014365 (Refugee)

[2024] AATA 3906

2014365 (Refugee) [2024] AATA 3906 (22 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2014365

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Jane Marquard

DATE:22 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 August 2024 at 6:44am

CATCHWORDS

REFUGEE – protection visa – Taiwan – victim of loan shark – criminal gang – attack on home – physical assault – detention – fear of killing – state protection – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 25
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Mok Gek Bouy v MILGEA (1993) 47 FCR 1
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 23 September 2020 to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND TO THE REVIEW

2. The applicant is a citizen of Taiwan.

3. He applied for the visa the subject of this review on 14 January 2020. He claimed to fear moneylenders and their criminal associates in Taiwan.

4. The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that there is effective state protection in Taiwan.

5. The matter is now before this Administrative Appeals Tribunal (the Tribunal) for review.[1]

   [1] Section 25, Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal has jurisdiction pursuant to Division 2 of Part 7 of the Migration Act 1958 (Cth).

   SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

6. The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

   [2] See Migration Regulations 1994 (Cth), Sch 1, item 1401; Sch 2, cls 866.1 to 866.611.

7. Australia acceded to the 1951 Convention relating to the Status of Refugees[3] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[4] in 1973, thereby undertaking to apply their substantive provisions. 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]

   [3] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).

   [4] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

   [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’.

8. 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.

9. An applicant must establish that they:

   a.are a refugee (the refugee criterion);[6] or

   b.qualify for complementary protection (the complementary protection criterion);[7] or

   c.are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[8]

   [6] Section 36(2)(a) of the Act.

   [7] Section 36(2)(aa) of the Act.

   [8] Sections 36(2)(b) and (c) of the Act.

   Refugee criterion

10. 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.

11. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.

12. 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.

13. 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)) although there are exceptions to this, set out in the provision. Effective protection measures are defined in s 5LA of the Act.

14. The reason must be the essential and significant reason or one of the reasons for the persecution. The persecution must involve serious harm and systematic and discriminatory conduct (s 5J(4)). Indicative examples of serious harm are set out in s 5J(5) of the Act.

15. Conduct engaged in by an applicant in Australia must be disregarded unless the applicant satisfies the Tribunal that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee (s 5J(6) of the Act).

16. 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-5LA of the Act, which are extracted in Attachment A to this decision.

    Complementary protection criterion

17. 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.

18. 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.

    EVIDENCE CONSIDERED IN THE REVIEW

19. The Tribunal has taken into consideration information in the application to the Department and new evidence to this Tribunal.

20. The applicant appeared before the Tribunal on 1 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. The applicant confirmed that he was satisfied with the standard of interpretation.

21. The Tribunal has also considered the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department.[9]

    [9] These are mandatory considerations as prescribed by Ministerial Direction No.84, a direction made under s 499 of the Act (‘Direction No.84’).

22. The Tribunal has taken into account independent information about Taiwan.

23. The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[10]

    [10] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

    FINDINGS AND REASONS OF THIS TRIBUNAL

24. The Tribunal has determined that the decision under review should be affirmed.

25. The reasons for this are set out below.

    Nationality

26. 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’. Section 5J(1) refers to this country as a ‘receiving country’.

27. 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.

28. The applicant has a passport from Taiwan issued in 2015. 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.

    Personal particulars and background

29. The applicant is aged [age]. He comes from Taipei, Taiwan.

30. His parents passed away ‘a long time ago’. His father was a fisherman, and his mother was a farmer. He has [number] brothers and sisters all living in Taiwan. They are all fishermen or farmers.

31. Since he has been in Australia, he has not been in contact with them. He said that ‘there are many reasons behind this’.

32. The applicant has extended family in Taiwan, including cousins, but his uncles and aunts have passed away. He is ‘not really’ in contact with them.

33. The applicant attended high school (a night school) until [specified year]. He worked during the day. He studied [vocational courses]. His family was poor, so he had to work to make some money. He has been [an occupation 1] for over [number] years and is ‘highly skilled’. He started off working in a factory and quit there after graduating. He worked for different employers until he came to Australia. Later he worked doing [specified duties] as a contractor for himself. On and off he was self-employed, in total for about 15 years. Just prior to coming to Australia he was self-employed in a company with his de facto. The business was called [name].

34. He married when he was [age] years old. He and his wife were together for about 20 years. His eldest daughter was about [age] when they separated.

35. He has two children. His daughter is now in her [age range]. She is living in Taiwan with his ex-wife. He said that when he got divorced, he told his children to treat his wife well. He said that he is not in frequent contact with his children. His ex-wife had a good job as a [manager] in a big [agency]. He does not know if his children are working as he is not in contact. He said that talking about them brings up sad memories.

36. The applicant said that his siblings are Taoists. Because of his religious beliefs his wife told his children not to get involved with their religion which they practise in a temple in Taiwan. He said he is a Buddhist, but his siblings are Taoists. He said that Taoism and Buddhism are similar.

37. After his divorce the applicant entered a de facto relationship with a woman he met [at work]. They are still in a relationship.

38. He arrived in Australia [in] December 2019.

    Did the applicant borrow money and get harassed, beaten and detained by gangsters sent by the creditors?

39. The Tribunal must determine whether the incidents in Taiwan took place as described by the applicant.

    Principles of credibility assessment

40. In assessing credibility, the Tribunal is mindful of cross-disciplinary research about the fallibility of memory and refugee decision-making.

41. Research has concluded that memory is not fixed, and that it is selective and fragmentary.[11] Memory may be impaired by emotion, and affected by information a person receives after encoding an event.[12]

    [11] Prof U Ecker, ‘Memory: Misconceptions, Fallibility’, University of Western Australia, Australian Academy of Law. 

    [12] Prof U Ecker, ‘Memory: Misconceptions, Fallibility’, University of Western Australia, Australian Academy of Law. 

42. Research in Canada has 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’.[13] An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[14] Madeline Holland in a paper on Narrative and Credibility in the United States’ Political Asylum Applications argues that the stories of asylum seekers are evaluated for their truthfulness ‘on the basis of criteria that align with Western literary standards of veracity’. That is, ‘Western literary standards shape our understanding of what a ‘true story’ should sound like’.[15]

    [13] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511<  Hunter Dowd, 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’.

    [15] M Holland, ‘Stories for Asylum: Narrative and Credibility in the United States’ Political Asylum Application’, Refuge: Canada’s Journal on Refugees, 10 December 2018.

The Tribunal acknowledges, in light of this research, that it should take a ‘reasonable approach’ to credibility assessment and base findings on evidence rather than assumptions, which may be founded in cultural or social bias. The Tribunal is cognisant of the particular complexities in presentation of evidence in asylum cases. The Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 referred to these difficulties as follows:

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 also be impacted by cultural behaviours, mental health 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.[16]

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

The objective of taking a ‘reasonable approach’ to fact-finding, given the various impacts on presentation of evidence, is supported in numerous judgments.[17] 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.

[17] See for example Full Federal Court case in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133.

The Tribunal’s Guidelines on the Assessment of Credibility,[18] 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.

Claims of the applicant

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

In his application the applicant claimed that he lost a lot of money in Taiwan. He said that:

the creditors came to the gangs to recover. They harassed me every day, beat me up and detained me. I was very afraid. I escaped. Please protect me. In Taiwan, gangs set up companies and obtained for-profit registration certificates from the Taiwan authorities. Among the company’s profit-making matters, there is an item called ‘collection of overdue accounts receivable’. They accept the entrustment of creditors and pursue debts from debtors but the means of pursuing debts are very brutal. The citizens call them ‘violent debt recovery companies’. Gangs use violence or threats, intimidation, harassment and other means to demand debts.

He said in his application that he was ‘detained and beaten by gangs’. He said that he was shut in a windowless room and threatened. He was beaten with sticks and was not given water. He said that he was afraid that they would kill him.

He said in his application that:

the police didn’t accept my case. They asked me to go to court to sue. The power of the gangs is very large all over Taiwan. The police collect money from the gangs and work for them. They’re in a group.

At the Tribunal hearing he elaborated on his evidence. He said that he needed to borrow money because he started a company with his wife. Initially, the business went well, and it made money. However then ‘everything went wrong’ because they trusted a childhood friend and his brother’s [son] who joined the company. At first this worked well, but later his friend and nephew collaborated with a supervisor from another company and embezzled money, ran off and disappeared. He said that the company had already signed a [work] contract so there would be a penalty if they could not proceed.

Asked if he went to the police about the embezzlement, he said that he did, and the friend and nephew are wanted by the police. He does not have the police report because he was not given one. The police officer said that he would be in contact if they found the perpetrators, but the police did not contact them.

He said that after the embezzlement took place, his wife took out a loan. She borrowed money from a bank. He said that documents had been provided. The Tribunal said it did not have the documents and would give him a week to provide the translated documents. He said that he would provide the loan document from the bank, which he later did. He said that he could not remember the name of the bank as his de facto arranged it. They borrowed ‘about TWD[amount range]’. They entered into the agreement three to four years before coming to Australia. He then said that it was one and a half years before he came to Australia. He said that he has the agreement with the company’s stamp and will provide a translated copy. He said that his de facto made all the arrangements.

He was asked by the Tribunal what the term of the loan was. He said that they would pay TWD[amount] each month. Asked how long they were able to make the payments for, he said that they made payments for half a year. Then ‘things went downhill’ and some companies failed to pay them on time, but they had to pay salaries to employees and pay suppliers. He said that they had [number range] employees. Eventually they could not make the payments and they went bankrupt.

1. He said that they borrowed money from a ‘famous financial organisation’, but this organisation ‘sold the debt’ to a debt collector company who were ‘vicious’. The first time the debt collector company approached him it was 8pm and he was at home. There were 10 young males who went to his house. He had cash at his house, and some employees were there waiting to get paid. The men took their money and his computer and car. They told him he had to pay to get his car back, which he was unable to do.

2. He told the Tribunal that he was harassed once a week after this and loan sharks would try and get interest weekly. He said that, for example, if you owe TWD[amount] you would pay interest of TWD[amount]. He paid them interest and would negotiate and beg them to wait until he was paid.

3. He made the last payment in August 2019. He said that he had no money left but they said he must still pay. At this stage they had lost their property and were renting. The men from the loan shark company managed to find his rental address. He said that wherever he moved they found out.

4. He said that later he found a job at his friend’s business and worked there. He was getting TWD[amount] a day, and after a week he had made TWD[amount]. He said that he had to save some money for his daily expenses and so he paid them TWD[amount]. He said that was the point when he could not take it anymore and he said that he needed to leave the country.

5. The applicant told the Tribunal that in total he was harassed 10 times. He was beaten up the second time and had to go to hospital. He said that they used a hammer and hit his left knee. They tied him up and used a belt to hit his foot. He said that the reason they use this method is that although you feel hurt, the doctors cannot see the injury. He did not have money to go to a doctor.

6. Asked by the Tribunal if he went to the police to report the assault, he said that he did not that time because they threatened him.

7. He said that on the fourth time he had just got off work [at a work] site and they took him away. They threatened him saying that they would harvest his organs.

8. He said that he tried to ask all his friends and relatives to lend him money. Some gave him TWD[amount range].

9. He said that the debt collectors were vicious, and he had internal injuries on his organs, and he had to get dentures. Asked if he was beaten up again, he said that the fifth time he was beaten. He was punched and his teeth fell out. He got the dentures a day before coming to Australia, borrowing money from his nephew. He did not go to a doctor.

10. Asked if he reported it to the police, he said that he did not report it as he had no money. He thought that they would only protect him for a short period but could not protect him long term. He said that the police are very busy.

11. He said that he had some documents from the police but they left them in a property and had to sell that property and he did not retrieve them. There were ‘debt collector people lingering around the property 24/7’. He said that he could not sleep well and was in a ‘bad mental state’ and sometimes had to sleep in his car. He said that sometimes they took him to the mountains and left him there. He said that he called the police, but they could not protect him.

12. At the Tribunal hearing he said that he could not go back to Taiwan as it would not end well.

13. He was asked if he has paid back the loan since he has been in Australia. He said that the first year he did not make much money. He has repaid some smaller amounts. He gives it to his wife, who converts it in a currency exchange shop and sends it to friends and relatives, as they owe them money. He has not paid the debt collectors and does not want them to know that he is in Australia.

14. Asked if they harassed his family members, he said that the debtors went to his brother’s funeral and asked for him.

15. He was asked why he thinks that they would still harm him now. He said that they would still harm him, as he still owes them money.

16. He heard about applying for a visa to Australia through his de facto who came to Australia first. She escaped and went to China. He ‘could not take the debt collectors’ and had no money. They took all their money. He made a phone call to his de facto who had come to Australia. He asked the daughter of her sister to buy him a ticket to come to Australia.

17. When he came to Australia he lived in [Suburb 1]. He arranged accommodation. His wife was working as an [occupation 2]. He was asked how he afforded to live in Australia. He said that his wife gave him some money for living expenses. She borrowed money from her employers.

18. Asked if everything was true and correct in his application form, he said that it was. He said that he was helped by an agent, who was a neighbour of his wife’s family. Once he got a work permit, he got a job as [an occupation 3] in Australia.

    Findings of the Tribunal in respect of the incidents in Taiwan

19. The Tribunal accepts that the applicant borrowed money from a financial institution and was unable to pay the debt and that a debt collector company harassed and assaulted him prior to leaving the country. His evidence has been broadly consistent although there were some differences as to the dates of events, the number of times he was approached and whether he went to the police. He also did not provide details of this company or medical records, although he did provide a copy of the loan document. While one might question why the applicant did not ask police for help or approach other agencies for assistance, the Tribunal has been careful not to assume that everybody would seek help. Taking the reasonable approach to assessment of evidence referred to earlier in this decision, and considering it in totality, the Tribunal accepts that he was harassed by creditors. His experiences with debt collector companies does correlate with information about methods used by some illegal moneylender companies in Taiwan who have used violence and intimidation to force people to repay.[19] The Tribunal does not accept that the collectors approached his family at his brother’s funeral given that this evidence was given at the end of the hearing when the applicant was asked about family contact, and was not provided by him as part of his claims in evidence to the Department or Tribunal.

    [19] Taiwan News, 24 August 2023, <Loan shark ring busted same day as in-debt teen beaten to death in New Taipei | Taiwan News | Aug. 24, 2023 19:54>.

    The refugee criterion

    Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

20. 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.[20]

    [20] Section 5H(1) of the Act.

21. 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.

22. 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.

    Is there a real chance of serious harm if the applicant were to return to their home country?

23. The Tribunal has considered first whether there is a real chance that if the applicant returned to Taiwan he would be persecuted. Section 5J(4)(b) of the Act provides that the persecution must involve serious harm. The Tribunal must assess whether there is a real chance of serious harm in the reasonably foreseeable future.[21]

    [21] Mok Gek Bouy v MILGEA (1993) 47 FCR 1 at 66; and MIEA v Wu Shan Liang (1996) 185 CLR 259 at 279 where the High Court referred with approval to the test that the Tribunal had applied in Chen Ru Mei v MIEA (1995) 58 FCR 96.

24. 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,[22] – not only must a person fear persecution, there must also be a prospect of that fear being realised.

    [22] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>

    The applicant claimed that he would be abused and may be killed if he returns to Taiwan.

25. At the Tribunal hearing, the Tribunal put to the applicant that there must be a real chance of serious harm, yet in Taiwan crime rates are low, his family has not been harmed and time has passed such that the perpetrators may no longer be focusing on him. He responded that the risk will be high and there are still things happening under the table that people do not know. He said that he knows crime is low, but police officers are not aware of the conduct of underground loan sharks. He said that there has been a decline in the economy, farmers cannot export fruit to China, and it is difficult for employers. He agreed that the police officers are actively combating gangs, but he said that they have limited time. He said that they would listen to his report, and it would go nowhere. The Tribunal put to him that the police could identify and prosecute the individuals as he knows who they are. He said that each time the debt collectors would send different groups of people to him, carrying his signed agreement.

26. He said the intimidation level was so high that he even felt suicidal at the time. In Australia he is lawful and has paid his taxes. He commented that Australia is beautiful and people are kind. He said that he wants the Australian government to allow him to start a new life and be a taxpayer for the society. He does not want to go back to Taiwan as he cannot sort out the debt, and the day he is over there is the day he will die. He said that he is old and wants to live peacefully. Asked if he had sought out other agencies or non-governmental organisations for assistance, he said that he did try and talk to a senator but the senator wanted money.

27. 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 of the Act, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[23]  

    [23] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.

28. The Tribunal is not satisfied that the harm feared is more than a remote or far-fetched possibility ((Chan v MIEA (1989) 169 CLR 379). When considering the evidence presented and independent sources about Taiwan, the Tribunal is not satisfied that there is a real chance of serious harm if the applicant were to return to Taiwan in the reasonably foreseeable future. The reasons for this are as follows.

29. Firstly, the applicant left Taiwan in 2019. Four and a half years have passed since the incidents in which the debt collectors harassed and assaulted him. The applicant has not suggested that he or his de facto have been contacted since he left Taiwan. This does suggest that the perpetrators are not actively seeking out the applicant or his de facto. Given this lack of communication, it is speculative to suggest that the debt collectors would still be interested in pursuing the applicant so long after the debt was made, in light of the passage of time.

30. Secondly, the Tribunal does not accept that the applicant’s family or his de facto’s family have been contacted by the debt collectors since he has been in Australia. The applicant has told the Tribunal that he has a large family in Taiwan. The lack of ongoing contact is an indicator that the perpetrators of the harassment would not harm him if he returned as they have not been actively seeking him out through his family. The Tribunal is not satisfied that they would seek him out if he returned.

31. Thirdly, it is possible that the debt collectors are no longer operational. Country sources referred to later in this decision point to large police operations directed at combating illegal moneylenders and shutting down illegal organisations.

32. Fourthly, as discussed later in this decision, the crime rate is very low in Taiwan, indicating that there is little violence against individuals, and the risk to the applicant should be evaluated in this context.

33. 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’.

34. The Tribunal is not satisfied for the reasons set out above, considered cumulatively, that the fear of harm is more than mere speculation. As the fear of harm is not substantial and is remote,[24] the Tribunal is not satisfied that there is a real chance of serious harm were the applicant to return to Taiwan in the reasonably foreseeable future.

    Is effective protection available?

    [24] Chan v MIEA (1989) 169 CLR 379.

35. Section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection is available.

36. Section 5LA(2) of the Act provides that effective protection is available if a person can access the protection, it is durable and protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

37. The Tribunal is not satisfied that there is a real chance of serious harm were the applicant to return to Taiwan in the reasonably foreseeable future. Reasons for this are set out earlier. The Tribunal is also satisfied that effective protection is available. Taiwan has a very low crime rate and there has been recent police focus on combating illegal debt collector activity. CCTV coverage across the city ensures public safety. In this context it is possible that the debt collectors are no longer operating.

38. Violent crime rates are among the lowest in the world.[25] The Office of Safety and Crime states that there is a minimal risk of crime in Taiwan.[26] The National Police Administration is regarded as effective and operates within a low crime environment.[27] There is extensive CCTV coverage throughout Taiwan, which deters criminal activity and the streets are generally safe.[28] There is a network of security cameras at traffic intersections, commercial establishments, and public areas of hotels and residential buildings which means that authorities can monitor and/or record most activity occurring outside of the house. This plays an extensive role in deterring most criminal activity.[29]

    [25] Overseas Security Advisory Council, US Department of State, ‘Taiwan Country Security Report’, 7 July 2023.

    [26] Overseas Security Advisory Council, US Department of State, ‘Taiwan Country Security Report’, 7 July 2023.

    [27] Overseas Security Advisory Council, US Department of State, ‘Taiwan Country Security Report’, 7 July 2023.

    [28] Overseas Security Advisory Council, US Department of State, ‘Taiwan Country Security Report’, 7 July 2023.

    [29] Overseas Security Advisory Council, US Department of State, ‘Taiwan Country Security Report’, 7 July 2023.

39. Violent crime rates are among the lowest in the world and have declined over the last decade.[30]  

    [30] Overseas Security Advisory Council, US Department of State, ‘Taiwan Country Security Report’, 7 July 2023.

40. Police are proactive in searching for and prosecuting organised criminals. Chinese organised crime gangs (triads) in Taiwan are often linked to politics and are allegedly linked to pro-Beijing interests.[31] The Organized Crime Prevention Act 2018 includes a broad suite of offences including being a member of, financing, recruiting for or threatening a person in the name of an organised crime group.[32]

    [31] For example, Foreign Policy, ‘Nice Democracy You’ve Got There. Be a Shame If Something Happened to It’, 18 June 2018; Taipei Times, ‘Prosecutors charge ‘White Wolf’, other CUPP members with illegal gains’, 14 August 2019; Taipei Times, ‘Police detain 350 in crackdown on organized crime’, 4 May 2019.

    [32] Government of Taiwan, ‘Organized Crime Prevention Act’, 3 January 2018.

41. A 2021 independent survey measuring public satisfaction with justice and crime prevention policies demonstrates that more than 80 per cent of the respondents were satisfied with the police in maintaining public safety. This was the third time the results were this positive.[33] Other research has also concluded that the majority of the community trust the police.[34] More than 73 per cent of respondents approved of law enforcement efforts to safeguard public security in a survey of the Crime Research Centre in 2023.[35]

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

    [34] Wang, Shun-Yung Kevin (2018), A Review of Taiwanese Trust in the Police with

    [35] Taipei Times, ‘Public confidence in law enforcement efforts high: survey’, 15 February 2023.

42. In recent years there has been a police focus on catching and prosecuting illegal loan sharks. The law proscribes lending money at an ‘obviously’ inappropriate interest rate based on the ‘urgent need, carelessness, inexperience or lack of other resort’ of the borrower.[36] Monitoring, intrusion upon, threats, intimidation and actual harm in an effort to instil fear are all criminalised.[37]

    [36] Government of Taiwan, ‘Criminal Code of the Republic of China’, as amended to 15 January 2020, art. 344.

    [37] Government of Taiwan, ‘Criminal Code of the Republic of China’, as amended to 15 January 2020, art. 344.

43. Although the applicant claimed that the police are not aware of the activities of illegal moneylenders and could not help him, loan sharks have been targeted in broad crackdowns against criminals.[38] Police operations against loan sharks are reported in the Taiwanese media and hundreds of loan sharks have been arrested in recent years. [39] In August 2023 seven people were arrested from a loan shark ring.[40] In March 2021 police arrested eight suspected gang members accused of using violence and intimidation to collect money on behalf of creditors.[41]

    [38] Taipei Times, 29 October 2023, <Two arrested over loans targeting students - Taipei Times>; Taipei Times, ‘police detain 350 in crackdown on organized crime’, 4 May 2019; Taiwan News, 24 March 2022, < South Taiwan business owner reports loan shark for 'not taking repayment' | Taiwan News | Mar. 24, 2022 10:43>.

    [39] Taiwan News, ‘South Taiwan business owner reports loan shark for ‘not taking repayment’’, 24 March 2022; Focus Taiwan, ‘8 gang members arrested for illegal collection of debts in Taipei’, 14 March 2021; Taipei Times, ‘Police detain 350 in crackdown on organized crime’, 4 May 2019, 20200610130957; Taipei Times, The, ‘Police tout results of raids on gun, loan operations’, 24 June 2019.

    [40] Taiwan News, 24 August 2023, <Loan shark ring busted same day as in-debt teen beaten to death in New Taipei | Taiwan News | Aug. 24, 2023 19:54>.

    [41] Focus Taiwan, ‘8 gang members arrested for illegal collection of debts in Taipei’, 14 March 2021.

1. Three hundred and fifty people were detained in a nationwide crackdown on organised criminals and loan sharks in May 2019.[42] More than 300 people were arrested in a similar 2018 crackdown.[43] In 2021, Taipei’s police commissioner acknowledged an increase in negative public perceptions in the ability of law enforcement authorities to contain organised crime and vowed to intensify police efforts by conducting more frequent operations.[44]

   [42] Taipei Times, ‘Police detain 350 in crackdown on organized crime’, 4 May 2019.

   [43] Taipei Times, ‘Law and Order: Taipei police commissioner reassures public on safety’, 7 May 2021.

   [44] Taipei Times, ‘Law and Order: Taipei police commissioner reassures public on safety’, 7 May 2021.

2. Taiwan has an independent judiciary with a free and fair court system.[45]

   [45] United States Department of State, ‘Country Reports on Human Rights Practices – Taiwan’, 20 March 2023.

100.   Corruption is low by international standards, with Transparency International giving Taiwan a score of 68 out of a possible 100.[46]

[46] Transparency International. Corruption Perceptions Index 2022, Transparency International, 31 January 2023, p.2, 20230131163957. Note, the score represents the perceived levels of public sector corruption in 180 countries worldwide.

101.   While the applicant has not trusted that the police could help him prevent threats and other harm from the debt collectors in the past, it appears from the sources set out above that the police are active in preventing this kind of conduct and arresting perpetrators. Although the Tribunal is not satisfied that debt collectors are actively seeking out the applicant, given the passage of time and the lack of communication with him and his family, were the applicant to be contacted, the Tribunal is satisfied that he could access protection as the sources do not indicate that there are barriers to access. The Tribunal notes that there may be occasions when the police do not know about the conduct of criminals. However given that the applicant had a loan document and could provide information to police about the bank he borrowed from, the Tribunal is satisfied that the police could locate and prosecute the individuals involved as they have had a focus on this kind of criminal activity and the crime rate is generally low, illustrating that police are generally effective.

102.   Furthermore, the sources indicate that the protection is durable in that there has been consistently low crime rates over the years with high levels of community satisfaction for police.  

103.   The Tribunal is satisfied that the protection consists of an appropriate criminal law. The Refugee Law Guidelines refer to considering whether the laws are laws of general application, or, if discriminatory, are appropriately adapted to meeting a legitimate State objective.[47] In this case, the sources set out above indicate that there are appropriate criminal laws directed at moneylenders who intimidate or harm debtors, as well as other general criminal law.

[47] Policy – Refugee and humanitarian – Refugee Law Guidelines, Section 9.5, as re-issued 1 July 2017 (Refugee Law Guidelines), Department of Home Affairs.

104.   The Tribunal is satisfied that the protection consists of a reasonably effective police force. According to the Refugee Law Guidelines, a reasonably effective police force is one that is able to respond in a reasonable time but need not cover every situation.[48] As set out in the sources above, community satisfaction with the police force is consistently high and Taiwan has one of the lowest crime rates in the world.

[48] Policy – Refugee and humanitarian – Refugee Law Guidelines, Section 9.5, as re-issued 1 July 2017 (Refugee Law Guidelines), Department of Home Affairs.

105.   The Tribunal is satisfied that the protection consists of an impartial judicial system. The Refugee Law Guidelines suggest that an impartial judicial system is one that applies the law in a consistent manner and does not apply differing standards for a reason under s 5J(1)(a).[49] As referred to above, Taiwan has an independent judiciary and a free and fair court system.[50]

[49] Department of Home Affairs, Refugee Law Guidelines, section 9.5, re-issued 1 July 2017.

[50] United States Department of State, ‘Country Reports on Human Rights Practices – Taiwan’, 20 March 2023.

106.   The Tribunal is satisfied that the applicant could access the protection, it is durable and protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system (Section 5LA(2) of the Act).

107.   The Tribunal is satisfied therefore that effective protection is available.

Findings on refugee criterion

108.   The Tribunal is not satisfied therefore that there is a well-founded fear of persecution for any of the reasons set out in the legislation.

Does the applicant meet the complementary protection criterion?

109.   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’).

110.   ‘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.

111.   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 is not satisfied that there is a real chance of serious harm from the debt collectors for reasons set out above. For the same reasons, on the basis that the real risk test imposes the same standard as the real chance test, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation, including in the form of possible torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

112.   Furthermore, 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 it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; 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; or where the real risk is one faced by the population of the country generally.

Protection such that there would not be a real risk of significant harm

113.   Under s36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

114.   The Tribunal is not satisfied that there is a real risk of significant harm were the applicant to be removed from Australia to Taiwan. Reasons for this are set out earlier.

115.   Additionally, the Tribunal is satisfied that the level of protection is such to reduce the risk of the applicant being significantly harmed to something less than a real risk. In reaching this conclusion, the Tribunal has assessed the nature and the degree of the protection. As set out in sources cited earlier in this decision, Taiwan has an effective police force, reflected in one of the lowest crime rates in the world. CCTV cameras are found in public sites and residential buildings across the cities. The community satisfaction with the police is consistently very high, suggesting that the community is satisfied generally with response rates to threats or actual crime. In regard to the harm feared, which is harassment, threats or assault from gangsters in a debt collecting company, there have been specific police operations to combat this kind of crime, as referred to earlier in this decision.

116.   In the applicant’s case, there is no reason he could not access this protection and seek assistance, given the police focus on combating illegal moneylenders, and police effectiveness generally as referred to in the sources. The Tribunal is satisfied that the police would take measures to assist the applicant, given the sources referred to above indicate that the community is satisfied with the police response, and the police focus on combating this type of crime.

117.   Considering these sources cumulatively, the Tribunal is satisfied that the level of protection would be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

Findings on complementary protection

118.   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

119.   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) of the Act.

1. 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) of the Act.

2. 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) of the Act.

   DECISION

122.   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.

…

Alternative Interpretations. In: Journal of Social and Political Sciences, Vol.1, No.1, 2018, 33-45.