2015012 (Refugee)
[2025] ARTA 749
•13 March 2025
2015012 (REFUGEE) [2025] ARTA 749 (13 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2015012
Tribunal:General Member A. Faram
Date:13 March 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 13 March 2025 at 12:04pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – particular social group – women – victim of family violence – physical assault – threats from criminal gang – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Administrative Review Tribunal Act 2024, ss 9, 106
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2 cl 866.221CASES
Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
SZBEL v MIMIA (2006) 228 CLR 152
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34Any 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 Immigration and Multicultural Affairs on 1 October 2020 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicant, a national of Taiwan, applied for the visa on 7 December 2019. The delegate refused to grant the visa on the basis that the Applicant did not fear harm for a refugee reason and, with respect to the complementary protection criteria, because she would receive protection from the authorities in Taiwan, such that there would not be a real risk that she would suffer significant harm if removed from Australia to Taiwan.
On 8 October 2020, the Applicant applied to the Administrative Appeals Tribunal (the AAT) for merits review of the delegate’s decision.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
Making a decision without a hearing
On 20 February 2025, the Tribunal wrote to the Applicant advising that her matter had been constituted to a Tribunal Member and that an in-person hearing had been scheduled at the Tribunal in Melbourne. The Applicant was advised of the hearing details and asked to return a ‘Response to hearing notice’ form.
The Applicant returned the ‘Response to hearing notice’ form to the Tribunal, and advised the Tribunal that she would not participate in the hearing and requested that a decision be made on the papers.
Noting the Applicant appears to live in a remote region, the Tribunal contacted the Applicant and sought to bring to her attention that a hearing could be conducted remotely, if distance had been a factor in her request to not attend a hearing, and for a ‘decision on the papers’. The Applicant responded, asking about remote hearing modalities, and noting she would require a Mandarin interpreter for a hearing. On 28 February 2025 and 4 March 2025, attempts were made to contact the Applicant on the phone, in order to clarify her wishes. She was not reachable but messages, via an interpreter, were left on each occasion, asking her to contact the Tribunal.
On 5 March 2025, the Tribunal sent the Applicant correspondence asking her to clarify if she wanted the Tribunal to conduct a remote hearing so that she could provide further information and evidence in support of her review application, or if she wanted the Tribunal to decide her matter, ‘on the papers’, without hearing from her and based on the materials before it. The Applicant replied the same day, requesting the Tribunal to make a decision without conducting a hearing. She further annotated and re-attached the hearing response notice with the same request.
The Tribunal wrote to the Applicant on 6 March 2025 confirming receipt of her request and noting the hearing in her matter had been cancelled.
Pursuant to ss 106(1) and (3) of the Administrative Review Act 2024 (the ART Act), the Tribunal may make a decision after considering the documents and things given to it, and without holding a hearing, if the applicant requests that it do so,[1] and if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.[2]
[1] Section 106(3)(b)(ii) of the ART Act.
[2] Section 106(3)(c) of the ART Act.
The Applicant has requested that the Tribunal make its decision without holding a hearing, per section 106(3)(b)(ii) of the ART Act. The issues for determination in this matter concern whether the Applicant is owed protection obligations under either the refugee or complementary protection provisions. The Tribunal has before it evidence of what would be the Applicant’s receiving country[3] and information, biographical and about her protection claims, that the Applicant has put forward as part of her application for a protection visa. Consistent with the Applicant’s request, and with reference to the materials before the Tribunal, the Tribunal considers that it can adequately determine the issues for determination in the proceeding without a hearing having taken place.
[3] Sections 5(1), 5J(1) and 36(2)(aa) of the Act.
The Tribunal has considered other discretionary powers available to it, such as whether the Applicant should again be invited to appear, or whether the Tribunal should write to the Applicant to invite her to provide further evidence or submissions. Noting the Applicant’s request and that she has had opportunities to provide further information in support of her application,[4] and considering the objectives of the ART to provide a mechanism of review that is quick, responsive and fair,[5] the Tribunal has decided against taking either step, and has determined the review application on the material before it.
[4] See Review Application form lodged 8 October 2020; Acknowledgement letter dated 8 October 2020; Pre-hearing information form, sent by link on 22 January 2025; Hearing notice dated 20 February 2025, see also correspondence regarding hearing modality noted above.
[5] Section 9 of the ART Act.
BACKGROUND AND EVIDENCE BEFORE THE TRIBUNAL
The Applicant was born on [date] in Tainan City, Taiwan. She arrived in Australia in early 2018 and lodged a protection visa application on 7 December 2019. Together with the completed application form, the Applicant provided a copy of her Taiwanese passport.
In the bio data section of the protection application form, the Applicant stated that she had completed high school in [specified year] and had never been employed. The application form also set out that the following had occurred:
-She decided to leave Taiwan because she wanted a new start after having been terribly abused by her ex-boyfriend, mentally and physically.
-He slapped her face and kicked at her stomach. He did it whenever they fought because he was jealous.
-She did not seek help because she was scared, and she did not know who to ask. She only asked for help from her family and relatives.
-She did not move to another area because people know each other and so she considered her ability to move was limited. He could easily find her. She feels blessed to be in Australia.
-If she returned to Taiwan, it would jeopardise her safety because she was maliciously threatened by him and a gang.
-She would certainly be harmed on return; it would be like committing suicide. She has been hurt for many years and does not want to experience it anymore.
-She still feels unsafe about making an official report because he is still free out there.
-It would be impossible for her to relocate, and she may need to wait a bit longer until the situation is under control.
The Applicant did not provide any other information or evidence to the Department, or to the Tribunal, in support of her protection visa application.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criteria
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.
Complementary protection criteria
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’).
A real risk (as with a real chance, per the refugee criteria) is one that is not remote or insubstantial or a far-fetched possibility.[6]
[6] Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
‘Significant harm’ is exhaustively defined in s 36(2A). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. There is an intentional element to the meaning of cruel, inhuman and degrading treatment or punishment (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34).
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 and is not faced by the applicant personally: s 36(2B) of the Act. Sections 5(1) and 36(2A) and (2B) 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, to the extend that they are relevant to the decision under consideration. The Tribunal’s mandatory considerations would also ordinarily include country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, however there is no such report on Taiwan.
REASONS AND FINDINGS
The issue in this case is whether, on account of family and/or gang violence, the Applicant is a person to whom Australia has protection obligations under s 36 of the Act and cl 866.221 of Schedule 2 to the Regulations.
While the Applicant declined to give oral evidence to the Tribunal, the Tribunal, with reference to her form and copy passport is satisfied that she is a citizen of Taiwan. For the purposes of this protection eligibility assessment, Taiwan is the ‘receiving country’ against which her claims are assessed.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal considers that the Applicant’s evidence is brief and is internally inconsistent. She arrived in Australia in early 2018, on her evidence in fear for her safety in Taiwan, but she did not lodge an application for protection for almost 24 months. She has not provided sufficient details about her experiences of harm at the hands of her former boyfriend, nor any details about how he threatened her and whether this was during their relationship or was also after their relationship ended. She has also not provided evidence about how her family responded to her raising experiences of family violence with them. She has mentioned a gang, but has not provided any detail about the gang, such as what they were called or whether they are connected to her boyfriend or to her experiences of family violence or whether a gang was independently threatening her in Taiwan. She has also not provided evidence about the situation now or in the reasonably foreseeable future in circumstances where her initial application alluded to it being possible for the situation to resolve or to come ‘under control’.
The Act places certain obligations on applicants to provide sufficient evidence to establish their claims (section 5AAA) and it is established that, while an inquisitorial process, it is for an applicant to make their case.[7] The fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, 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 the statutory elements are made out and a decision-maker is not required to make the applicant's case for them.
[7] SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 at [57].
The Applicant has provided insufficient details and evidence about her claims. On the information before it, and considering the issues identified in the Applicant’s evidence, the Tribunal does not accept that the Applicant has in the past experienced family violence or been threatened by a gang or that she would, now or in the reasonably foreseeable future, face a real chance of harm in Taiwan for the reasons claimed.
The Tribunal is not satisfied the Applicant faces a real chance of serious harm for the reasons claimed, or for any others, now or in the reasonably foreseeable future. It follows that she does not meet the refugee criteria set out in s 36(2)(a).
Section 36(2)(aa) of the complementary protection provisions refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition, and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[8]
[8] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
As set out above, the Tribunal is not satisfied there is a real chance that the Applicant will experience serious harm in Taiwan because of her former boyfriend or a gang, or for any other reason. Similarly, 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[9] that she will suffer significant harm for these or any other reasons in Taiwan.
[9] A real risk, as with a real chance, being one that is not remote or insubstantial or a far-fetched possibility, Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
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) or s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that the Applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the Applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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