2014809 (Refugee) - [2025] ARTA 1177

2014809 (REFUGEE) [2025] ARTA 1177 (24 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2014809
Tribunal:Member G Bull
Date:24 March 2025

Place:Perth
Decision:The Tribunal affirms the decision under review.

Statement made on 24 March 2025 at 6:23pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – guarantor for friend’s loan from illegal money lender – beaten and threatened and goods destroyed – police inaction and collusion – different claims at hearing – debts owed by gambler father, current whereabouts unknown – multiple visas, departures and returns – threatened and attacked during recent return – applied shortly before last visa due to cease – vague claims and no supporting evidence – no recent contact with lenders – not member of particular social group as defined – country information – state protection available – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), 5L, 5LA, 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Department) on 23 September 2020 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 national of Taiwan, applied for a protection visa on 6 March 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).
The applicant appeared before the Tribunal on 24 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Applicants’ identity and country of nationality
The applicant provided the Department with a certified copy of her Republic of China (Taiwan) passport and the delegate was satisfied of the applicant’s identity. The information provided by the applicant is consistent with her evidence to the Tribunal in relation to her identity. There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that the applicant is a citizen of Taiwan and as such her protection claims will be assessed against Taiwan as the country of reference and ‘receiving country’ respectively.
BACKGROUND
The applicant who is [Age] years of age first arrived in Australia in June 2013 on a working holiday visa. The applicant departed Australia and returned on two separate occasions in 2014 and was granted a student visa in November 2014.
In May 2016 the applicant was granted a tourist visa and in December 2016 was granted a student visa. During 2016 the applicant departed Australia and returned on three separate occasions.
In 2018, the applicant departed Australia and returned and was granted a further student visa in June 2018.
In February 2019 the applicant departed Australia and upon returning in March 2019, the applicant applied for a protection visa.
Evidence before the Department
The applicant filed her protection visa application with the Department on 6 March 2019 where her reasons for claiming a protection visa were stated as having been a guarantor in 2017 for a friend who borrowed 13 million Taiwan dollars (TWD) (approximately AU$629,000) from an illegal money lender to pay a surgery bill for his sick grandfather.
In June 2018, her friend ran away as he was unable to repay money owed to the money lender. As the applicant was the loan guarantor, the money lender chased her for the money. She wrote a public letter to distribute about her situation, but the money lender found out and sent gangsters to recover the money from her. They threatened her, smashed goods in her house and beat her.
The applicant called the police, but they ignored her report. Her friend told her that the money lender was protected by the police and the police were corrupt as is the Taiwanese government. The money lender sent police to capture her, so she fled to Australia.
If she returns to Taiwan she will be caught by the police and imprisoned and will ‘even die’.
Evidence before the Tribunal
The applicant’s evidence before the Tribunal differed markedly from what had been put before the Department.
The applicant stated that she was making a protection visa application on the grounds that she was being persecuted in Taiwan by gangsters due to a debt owed by her father and had not, as stated in the Department application been guarantor for a loan taken out by a friend.
The applicant stated that she last saw her father in 2018 in Taiwan and did not know his current whereabouts.
The applicant advised that she arrived in Australia in 2013 on a working holiday from Taiwan and worked in a [workplace 1] in [Suburb 1].
Due to her liking of the Australian life, she returned to Australia as a student in February 2014, to study English at an institution in [Suburb 1], which she did for around one and a half years and then returned to Taiwan to help her mother for three to four months. The applicant advised that in 2018, she applied to study [subjects] in Australia which she did for around one to two years.
On [Day 1] February 2019, the applicant returned to Taiwan and then returned to Australia on [Day 2] February 2019 and shortly thereafter on 6 March 2019 she applied for a protection visa.
The applicant has subsequently remained in Australia and has worked at a [workplace 2] for two years and currently works at the [Workplace 3] in [Suburb 3] where she has been for about two years working in the [workplace]’s [section].
The Department’s records indicate that the applicant has travelled from Taiwan to Australia and return between 2013 and 2019 on numerous occasions.
In regard to the applicant’s initial protection visa made in March 2019, before the Department the applicant stated that she used a migration agent [Mr A] who was recommended by friends and charged her $500 for completing her application. She did not meet [Mr A] and only contacted him online. The applicant states that she provided [Mr A] with all the details of her claim concerning being chased and threatened by gangsters in Taiwan. The applicant did not see and was not provided with a copy of the application filed on her behalf.
While as set out above, the applicant initially stated that she had not seen her application or the Department’s refusal decision, later in the hearing the applicant stated that she had seen both documents, but they were not provided to her by her agent.
Asked by the Tribunal how the applicant became aware of the Department’s decision, the applicant stated she only became aware of the decision after receiving correspondence from the Tribunal regarding her review application.
The applicant stated that she did not know who had filed her review application.
Upon receiving the Tribunal’s Notice of hearing the applicant contacted [a community legal service] who asked her to prepare information for the review hearing.
The applicant then filed a written statement for the hearing which she prepared with the help of her new representative.
In summary the applicant recounts having experienced difficulties as a child due to her father’s gambling. With her father having borrowed money from a gang of loan sharks, the family needed to move around when she was young. The family’s living conditions were bad as a result of having little money, and the gangsters would come to their house and assault their father, her sister and herself.
When the applicant was seven years of age, she was sexually assaulted by an uncle who told her that her father owed him money.
In February 2018, when back in Taiwan the applicant was on her way to work and was threatened by an Asian man and her mother told her that this was a warning from the gang. Her uncle that had sexually assaulted her when she was seven, also came to her house and told her that her father owed him a lot of money. He tried to assault her again, but she ran away.
The applicant’s statement then refers to a gang member having come to her house asking for money and threatening to hurt her mother. The applicant states that he physically assaulted her. The applicant’s father then promised to pay the money owed and the gangster then left. The gangster told her not to call the police. Her mother sent her ‘little’ brother to stay with friends as the gangsters appeared around his school.
The applicant states that her mother told her to go back to Australia and stay there as long as possible. This was the first time she had been threatened by the gangsters.[1]
[1] Contrary to her experience as a child
The applicant states that her mother worked many jobs to pay her father’s debts, but her father continued to gamble. As a result, she asked the migration agent she was recommended, to apply for another visa before her student visa expired, the agent said he would take care of everything. In 2020 her mother was diagnosed with a tumour which was too large to be surgically removed in its entirety and her mother passed away.
The applicant stated that should she return to Taiwan, the gangs will come after her and beat her up like they did to her parents.
The applicant acknowledges that the reasons she is now claiming to be the basis for her protection visa claim are not the same as those set out in her application before the Department.
The applicant told the Tribunal that she has a sister who is now [Age] years of age and [brothers] who are [Numbers] years younger that herself. Her sister and younger brother are married, and all her siblings live in Taiwan.
The applicant could not tell the Tribunal how her siblings manage to live in Taiwan safely and that she cannot. The applicant suggested that it may be because she was the eldest child.
The applicant was asked why she could not go to the police about the threats and assaults and stated that she lived in a small village and the police are connected with the gangsters. The applicant stated that in Taiwan you do not go to the police, when asked why, she stated because it is a different culture from Australia.
When asked whether she disputed the Country Information referred to in the Department’s decision concerning the government’s crack down on loan sharks, the applicant had no comment to make.
The applicant advised the Tribunal that the last time she was threatened was in 2018 and she had not been contacted by the gangsters or heard from them since coming back to Australia. When asked by the Tribunal if the gansters knew of her location, she stated that the gangsters knew she was in Australia. When further asked how they would know this, she was unable to provide an answer.
The applicant was asked whether she had ever paid the gangsters any money and she replied that in 2022, she paid between AU$10,000 and AU$20,000 but did not know how much was owed. When asked how this was done while she was in Australia the applicant stated that she paid it to a friend who has an international account and the friend paid it to the gangsters. Asked why she would make such a payment in 2022 after not having any contact with the gangsters for four years, the applicant stated because she had an obligation to pay her father’s debts. Asked whether any of her siblings had made any payments to the gangsters the applicant advised that she did not know and no longer had contact with her siblings.
The applicant could not satisfactorily explain why she could not relocate elsewhere in Taiwan away from the gangsters.
Criteria for 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, they are 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), they may nevertheless meet the criteria for the grant of the visa if they are 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 they 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.
COUNTRY INFORMATION
In accordance with Ministerial Direction No.84 of 24 June 2019, made under s.499 of the Act, the Tribunal must consider the country information assessments prepared by DFAT. However, there is no country information report about Taiwan prepared by DFAT for protection status determination purposes. The Tribunal has therefore considered other various country of origin information sources including the National Documentation Packages prepared by the Immigration and Refugee Board of Canada in relation to Taiwan. In addition, the Tribunal has considered the DFAT ‘Common Claims’ Republic of China (Taiwan) report dated 5 July 2022 (the DFAT Common Claims report) as detailed in Annexure ‘A’ to this decision with the relevant sections extracted.[2]
[2]Department of Foreign Affairs and Trade website ‘Australia-Taiwan Relationship’; AND FINDINGS
The issues in this review are whether there is a real chance that, if the applicant returns to Taiwan, she will be persecuted for one or more of the grounds set out in s.5J(1)(a) for the purposes of s.36(2)(a) of the Act, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Taiwan, there is a real risk that she will suffer significant harm for the purpose of s.36(2)(aa) of the Act.
Does the applicant satisfy the refugee criterion for protection?
Relevant grounds
To be considered a refugee pursuant to s.36(2)(a) of the Act, it is necessary that if returned to Taiwan, she has a well-founded fear of persecution by reason of her race, religion, nationality, membership of a particular social group (PSG) or political opinion pursuant to s.5J(1)(a) of the Act.
In this case, it was open to the applicant to submit that her claim falls within the scope of s.5J(1)(a) of the Act by reason of her membership of a PSG as a person who will suffer serious harm due to owing money to a gang if she is returned to Taiwan.
When a person claims to fear being persecuted for reasons of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It states:
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.
As such, for a person to be treated as a member of a PSG (other than the person’s family) they must have a characteristic, other than a fear of persecution, that is shared, or is perceived as being shared, by each member of the group. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.[3]
[3] Section 5L of the Act; Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264–266 and Gummow J at 285
While the applicant did not express her claim as being for one of the reasons set out in s.5(J)(1) of the Act, the Tribunal in any event does not accept the applicant’s claim falls within any of the s.5J(1)(a) refugee reasons.
The fact that the applicant’s father owes money to a gang in Taiwan that the applicant states she is being required to repay does not constitute a characteristic that can be described as innate or immutable or that it is so fundamental to her identity or conscience that she should not be forced to renounce it as required under the Act.
Notwithstanding this conclusion, there are other factors under s.36(2)(a) of the Act required to be met which the Tribunal is also not satisfied the applicant has met.
As stated above, the applicant first arrived in Australia from Taiwan in June 2013 on a working holiday visa. During the operation of this visa the applicant left Australia and returned on a number of occasions.

Following the expiration of her working holiday visa the applicant returned to Australia on a student visa in November 2014. During the operation of this visa the applicant also left Australia and returned.
In June 2016 the applicant arrived in Australia on an electronic tourist visa and during the operation of this visa left Australia and returned.
In June 2016 the applicant was granted a further student visa and during its operation left Australia and returned.
In June 2018 another student visa was granted which was to expire on 25 March 2019 and during its operation the applicant left Australia and returned. Having returned to Australia [in] February 2019, the applicant then applied for a protection visa on 6 March 2019.
As can be seen from the above, the applicant has between 2013 and 2018 returned to Taiwan from Australia at her own initiative on a number of occasions. During 2013 and 2018 prior to her refugee application the applicant had spent the vast majority of her time in Australia.
The applicant states that in early February 2018 at the age of [Age] years when in Taiwan on her way to work she was attacked but did not think much of it. However, her mother later told her that it was a warning from the ‘gang’.
The next month at her family’s house she was threatened and physically harassed by an uncle who had previously sexually assaulted her when she was a child. The uncle stated that her father owed him money.
On another afternoon a gang member came to her house and physically attacked her. Based on the applicant’s hearing response of 16 February 2025, her mother, uncle and father were also present at her home at the time.[4]
[4] Second full paragraph on page 2.
The applicant claims that there is a real chance she will be seriously harmed if she is returned to Taiwan by gang members because of a debt owed to the gang by her father. The applicant’s evidence in relation to her father’s debt and the threats she claims to have received by the gang members, was vague and lacking in detail. The applicant did not provide any independent evidence of her father’s debt to the gang.
The Tribunal does not accept as credible the applicant’s account of what occurred to her in 2018 while in Taiwan. The Tribunal is not required to accept uncritically any, and all the allegations made by an applicant.[5] Simply claiming a fear of persecution does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. That an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[5] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70
The applicant’s statements must be coherent and plausible and must not run counter to generally known facts. There is no acceptable explanation why she has been targeted and not her siblings that reside without harassment, in Taiwan. There is no reasonable explanation why the applicant is viewed as being responsible for her father’s debts or as discussed below the available Country Information is not correct.
The Tribunal does not accept that the applicant paid any of her father’s gambling debts in 2022, via a friend who has an international account, particularly as she was unable to tell the Tribunal how much was owed or produce any evidence of the payment. Why she would make such a payment after four years without any contact with the gangsters or why the gangsters were not interested in her siblings repaying their father’s debt was not answered satisfactorily.
The evidence from the applicant was that her father had accrued gambling debts for over 30 years, and it is only in 2018 after the applicant has spent the best part of five years in Australia that she is threatened and attacked when back in Taiwan for her father’s debts. She has not seen her father since 2018 and does not know his whereabouts.
The applicant’s claims are not persuasive or accompanied by any corroborative evidence, they are different from those initially made without an adequate explanation and are not accepted by the Tribunal.
Applicant’s well-founded fear
Based on the submissions of the applicant the Tribunal finds that the applicant was not threatened by a gang in Taiwan for the purpose of her paying her father’s debts as claimed. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed by a gang if she returned to Taiwan.
Access to state protection
Despite the conclusion reached above, if the applicant was threatened by a gang (which the Tribunal has specifically found she was not), based on the available Country Information the Tribunal finds that the applicant would be able to obtain effective protection to the extent that there would be no real chance that she would suffer serious harm if returned to Taiwan.
The applicant submitted that she could not report any threats or harm suffered to the police as the police are connected to the gangsters and that Taiwan had a different culture than Australia. This submission is not consistent with the available Country Information. Criminal penalties apply in relation to corruption by officials, which the authorities implement effectively. The Ministry of Justice and its Agency Against Corruption are responsible for combating official corruption. It is reported that the ministry has received sufficient resources and collaborated effectively with the community within the scope of the law.
The overall crime rate in Taiwan is low.[6] The National Police Administration (NPA) of the Ministry of the Interior is well trained and professional.[7] The mission of the NPA is to carry out police and law enforcement in Taiwan, maintain public order, uphold the safety of its citizens and society and promote the welfare of citizens.[8] Violent crime rates in Taiwan are amongst the lowest in the world.[9] The Taiwanese are increasingly satisfied with the country’s public safety and police services with 85.66 per cent of the population satisfied with police performance.[10]
[6] Crime and Police in Taiwan; Ibid
[8] Protection visa decision records dated 14 July 2017; Dept File No CLF2016/92638
[9] US State Department; 2022 Country Reports on Human Rights Practices: Taiwan The DFAT Common Claims report p.6
[10] Taiwan Today ‘Poll sees rising satisfaction with ROC public safety’ 20 May 2015, Freedom in the World 2022 Freedom House 9 June 2022 Taiwan, >
The Country Information reports that usury is a crime in Taiwan that attracts a penalty of up to five years in prison.[11] The law prohibits the lending of money at an obviously inappropriate interest rate based on the ‘urgent need, carelessness, inexperience or lack of other resort’ of the borrower.[12] The police conduct regular crackdowns on illicit activities related to organised crime including loan sharks and underground money dealers.[13] It is reported[14] that people often borrow money through unauthorised moneylenders to support business interests including ventures involved in mainland China. In March 2021 police arrested eight people suspected of being gang members accused of using violence and intimidation to collect money on behalf of creditors.[15]
[11] Criminal Code of the Republic of China, Chapter 32; The DFAT Common Claims report p.8
[12] Ibid
[13] Taipei Times, ‘Police detain 350 in crackdown on organised crime’ by Jason Pan 4 May 2019 The DFAT Common Claims report p.8; Malaysian News, ‘Taiwan businessman lodges police report against loan shark for refusing to take final loan instalment’ by Sylvia Looi 28 March 2022
[15] Focus Taiwan ‘8 gang members arrested for illegal collection of debts in Taipei’ 14 March 2021 >
Despite usury being a crime in Taiwan, based on the available country information the Tribunal accepts that unauthorised moneylending does occur. Nevertheless, the country information indicates that the police and other authorities are active in prosecuting illegal moneylending activities together with corruption within government administration.
The Tribunal prefers the available Country Information over the applicant’s claims of police corruption and lack of support from authorities. As stated above, at the hearing the applicant offered no reasons why the Country Information including that set out in the Department’s decision should not be accepted.
Therefore, having considered the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that, if it did accept that the applicant was threatened by a gang as claimed, effective protection measures are available in Taiwan from the state.[16] In addition, based on the available Country Information, the Tribunal finds that the state is able and willing to provide such protection.[17] That is, the applicant can access the available protection and the protection provided is durable.
[16] Section 5LA(1)(a) of the Act
[17] Section 5LA(1)(b) of the Act
From the available Country Information, the Tribunal finds that Taiwan has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system. Therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as claimed or any related claim or any other reason.
Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution that involves a real chance of persecution as required under s.5J(1)(b) of the Act. Therefore, the applicant does not satisfy s.36(2)(a) regarding her claims to be threatened by a gang over a debt owed by her father.
Therefore, having considered the applicant’s claim, the Tribunal finds that the applicant does not have a well-founded fear of persecution based on a real chance of suffering serious harm now or in the reasonably foreseeable future if she returns to Taiwan and finds that the applicant does not therefore satisfy s.36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion as set out in s.36(2)(aa).
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test at s.36(2)(aa) imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ for refugee purposes.
The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that she will suffer significant harm of any kind.
For the reason detailed above the Tribunal has not accepted the applicant’s evidence that she is being forced by gang members to repay her father’s debt. Accordingly, the Tribunal has found that there is no real chance that the applicant would be seriously harmed if returned to Taiwan. Therefore, for the reasons expressed above, in considering the applicant’s claim as a refugee the Tribunal finds that there is no real risk that she will be significantly harmed if she is returned to Taiwan.
In addition, for the reasons expressed above, the Tribunal has not accepted that the applicant is at risk of harm from gang members or that such risk would be serious pursuant to s5J(5) of the Act. Having considered s.36(2A) of the Act, the Tribunal finds, for the reasons expressed above, that the harm the applicant claims to fear does not amount to significant harm. As such the Tribunal finds that there is no real risk that the applicant will be significantly harmed by gang members if she is returned to Taiwan.
In all the circumstances, the Tribunal finds that, pursuant to s.36(2)(aa) there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, there is a real risk that she will suffer significant harm of any kind.
Conclusions
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.
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) based on being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 24 February 2025
Annexure ‘A’
State protection and rule of law.
Police Force
Police are effective and the crime rate is low. Violent crime rates are among the lowest in the world and crime is generally low. Excessive use of force by police is rare, and lawyers are allowed to monitor interrogations to prevent torture. A 2021 independent survey measuring public satisfaction with justice and crime prevention policies shows that for the third consecutive year more than 80 percent of the respondents were satisfied with the police in maintaining public safety. The Constitution prohibits arbitrary arrest and detention, and this principle is generally observed by authorities.
Judicial system
Taiwan’s court system is free and fair. Courts are independent, fair and generally free of corruption. All defendants have the right to a lawyer and to be present at trial. The most recent data of the World Values Survey (2019) shows that 56 percent of respondents in Taiwan expressed at least “quite a lot” of confidence in the judiciary. Nevertheless, large numbers of Taiwanese harbour long-standing and deep-seated mistrust in the effectiveness, political impartiality and fairness of the court system and judges. Some Taiwanese feel that the judicial system is unfair in rulings related to high profile political cases and President Tsai highlighted judicial reform as one of the core policy goals of her administration in order to address popular mistrust in the country’s court system. The government has committed to addressing some of these concerns and has made some progress on judicial reform.
Corruption
Corruption in Taiwan is low by international standards. Transparency International gave Taiwan a score of 68 out of a possible 100 in its 2022 Corruption Perceptions Index. Petty corruption is uncommon and high-profile corruption in Taiwan’s bureaucracy is rare and usually involve politically nominated officials rather than civil servants. An anti-corruption body was set up in 2011 and international sources assess that it effectively prosecutes corruption. Whistle-blowers are protected by law.
Crime
Taiwan has a low crime rate and one of the lowest violent crime rates worldwide. There is extensive CCTV coverage throughout Taiwan, which deters criminal activity, and the streets are generally safe. Violent crime rates are among the lowest in the world. As in other countries, property crime and fraud offences are reported in Taiwan. Drug offences are ‘increasing’ according to the US Department of State, but are punished severely, including for ‘soft drugs’ such as marijuana and the death penalty is applied to some drug crimes. Police actively seek out and prosecute organised criminals. Chinese organised crime gangs (triads) in Taiwan and are often linked to politics and are allegedly linked to pro-Beijing interests. The Organized Crime Prevention Act 2018 include 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. By May 2021 police had arrested 161 suspected gang members this year, and similarly 259 including 25 major criminal figures were arrested in 2020. Three hundred and fifty people were detained in a nationwide crackdown on organised criminals and loan sharks in May 2019. More than 300 people were arrested in a similar 2018 crackdown. 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. The overall effectiveness of these measures is difficult to measure, however some sources from 2016 claim that at that point in time, over decades, the reach, discipline and effectiveness of organised crime has decreased and that these organisations are now generally unsophisticated.
Loan sharks.
Usury is a commonly reported crime. Some usury activities are linked to organised crime (see Crime). Some people borrow money to support business interests, including for ventures involving mainland China. In March 2021 police arrested eight suspected gang members accused of using violence and intimidation to collect money on behalf of creditors. Usury is a hidden crime and little information is available about it. Police actively target loan sharks. Usury is a crime that can attract a penalty of up to five years in prison. 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. Monitoring, intrusion upon, threats, intimidation and actual harm in an effort to instil fear are all criminalised. Loan sharks have been targeted in broad crackdowns against criminals. Police operations against loan sharks are reported in the Taiwanese media and hundreds of loan sharks have been arrested in recent years.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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