2102639 (Refugee)

2102639 (Refugee) [2024] AATA 2326 (13 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2102639
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Rosa Gagliardi
DATE:13 March 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 March 2024 at 10:53am
CATCHWORDS
REFUGEE – protection visa – Taiwan – decision on the papers – sexual harassment by gangsters – abduction – attempted rape – country information – effective state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo & Anor (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 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 February 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Taiwan (a matter the Tribunal accepts on the evidence before it) applied for the visa on 14 April 2019.
The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Taiwan, there is a real risk she will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant’s engagement with the Tribunal
On 16 February 2024 the Tribunal wrote to the applicant at an email address provided by her for the purposes of the review to invite her to a hearing to have been scheduled on 12 March 2024 at 12:30pm [EST]. The hearing invitation explained that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. This invitation was returned to sender on 16 February 2024. On 20 February 2024 the applicant sent in a change of contact details. Accordingly, on 21 February 2024 the Tribunal wrote to the applicant via her new email address to provide the hearing invitation to her again. This time the invitation was not returned to sender.
On 9 March 2024 the applicant wrote to the Tribunal to advise that she had received two text messages inviting her to a hearing on 12 March 2024, but she had not received the hearing invitation. On 11 March 2024, the Tribunal again sent the hearing invitation to the most current email address provided by the applicant for the purposes of the review.
On 11 March 2024 the applicant wrote to the Tribunal advising she would not be attending the scheduled hearing and requested that the Tribunal make a decision in her absence (i.e., on the papers).
The hearing invitation stated that if the applicant was not available on the scheduled date and time, she needed to advise the Tribunal as soon as possible and that changes would be made to the hearing date if the Tribunal was satisfied that it was reasonable and there were good reasons for doing so. The applicant did not seek to postpone the hearing and did not offer a reason as to why she would not be attending the hearing.
The Tribunal is satisfied that after informing the Tribunal of her change in contact details that the hearing invitation was sent to her validly and that two SMS messages were also sent reminding her of the upcoming hearing.
The Tribunal accepts that proceeding to a decision on the information before it is a discretion only and that such a discretion should be used fairly. In this case as the applicant has provided the Departmental decision for the purposes of the review, and the applicant has stated she did not wish to attend a hearing without seeking a postponement, the Tribunal considers that it is reasonable to proceed to a decision on the papers without taking any further action to enable the applicant to appear before it.
In passing, the Tribunal notes that as set out in the Departmental decision, the applicant at primary review was provided the opportunity to submit all of the details of her protection claims to the Department.
In addition, on 29 April 2019 the Department sent the applicant an acknowledgement of valid application letter which advised she could provide additional information relating to her claims and that there were three ways for her to do so: ImmiAccount, mail or in person at the time of the collection of their personal identifiers. At the time of decision by the Department on 25 February 2021, no further information had been provided by the applicant.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant returned to Taiwan now or in the reasonably foreseeable future, she would be persecuted for one of those reasons and/or whether she would suffer serious harm. Alternatively, the Tribunal must assess whether the applicant meets the complementary criteria.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
Asked in her application form why the applicant had departed Taiwan, she wrote that early in 2015 in New Taipei City things had happened to her. She was bullied by a gang of gangsters. On the first night they sexually harassed her, but she was successfully able to “run out”. The applicant wrote that after a few days she walked in the night market street, and suddenly they saw her, and they forcibly abducted her into a van. She claims to have shouted for help, but no one wanted to help her. They abducted her and kidnapped her and attempted to rape her. She was, according to the applicant, kidnapped in the jungle for around one week. After that she successfully ran out of that place to the city area to seek help.
The applicant added that she went to the police station immediately but that the police would not help her. They just sent her to hospital. After she was wide awake, she was discharged from hospital, and she went to the police station again seeking assistance and hoping they could help her but finally they just commented but did not take a report or investigate the matter. Every day she claims that she went to ask how but they (presumably the police) did not want to assist her. They told her that if she spoke like this again, they would catch her and send her to jail. The applicant wrote that she suspected that the police obtain benefits from gangsters. The Taiwanese government and police are too corrupt. She escaped from Taiwan to Australia.
The applicant confirmed in her application that she had been harmed in Taiwan. She asserted that she had been bullied by a gang of gangsters and essentially repeated the claims she made in the above paragraphs.
She claimed she had sought assistance from the Taiwanese police and department but that they did not do anything. The applicant suspected the police and department obtain benefits from the gangsters and this is why they do not want to assist her.
The applicant claims that she did move from her home area to Taichung City I, Kaohsiung City, Tainan City, Chiayi City, Taitung County, Hsinchu City and a few county departments to seek help but she was told (a gap in statement) it was not in their scope to (possibly to help her).
The applicant stated that if she returned to Taiwan, she was fearful that the gangsters would continue to find her and it was unimaginable what would happen if they found her. The applicant wrote that she did not think the Taiwanese authorities would protect her because the government there was too corrupt.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
The Tribunal invited the applicant to a hearing because it had concerns about her claims. The applicant declined the opportunity to appear before it to provide further information even after being made aware that on consideration of all the material before it relating to her application, the Tribunal was unable to make a favourable decision on that information alone.
The Tribunal has had regard to the material before it but has many questions it would have liked to put to the applicant at a hearing to elicit some specificity about her claims and to request that the applicant provide details such as dates and locations on which and where certain events occurred. Instead, the applicant has provided a broad-brush account which does little to set the claims in context such that the Tribunal can accept that the events she claims occurred did so.
At a hearing had the applicant attended, the Tribunal would have liked to explore with the applicant whether she knew who the gangsters she claims bullied her were as individuals and to provide the number involved, as well as insight into their characteristics. Other matters the Tribunal would have asked about is precisely where the gangsters had conducted such behaviour. The Tribunal has questions about what the nature of the bullying consisted of and whether others witnessed any such conduct of behalf of the claimed gangsters. It is also unclear to the Tribunal why the gangsters targeted the applicant in particular and whether there had been any previous contact by the applicant with the gangsters.
The Tribunal has comparable questions about the claimed sexual harassment the gangsters perpetrated against the applicant and what this consisted of precisely. Also, at a hearing the Tribunal would have invited the applicant to discuss how it had been possible for her to successfully escape her captors had they been so powerful. The Tribunal would have liked to hear how step by step the applicant had managed to evade such determined predators who it is claimed had links to the police and government. These claimed events do not give enough detail for the Tribunal to be satisfied that they occurred as they are not detailed or set in concrete and in place and time.
The account of the applicant walking in the night market and being abducted into a van is similarly vague and not grounded in detail. The Tribunal would have liked to ask the applicant how many people witnessed the claimed abduction and why she thought no one would do anything to help her. At a hearing the Tribunal would have asked the applicant how far she thought she was driven away from the night market to the jungle area, for example. The Tribunal has many questions about this matter including whether the applicant was aware of the jungle’s existence and the Tribunal would have asked the applicant to assist it with information about where precisely the jungle was located.
The applicant claims that the gangsters attempted to rape her, but this significant event is also opaque in that the applicant has not provided any dates as to when and how this might have occurred. Given the applicant claims she underwent such a traumatic experience, the Tribunal would have asked the applicant to elaborate on whether the rape had occurred, or whether it had remained an “attempted” rape. The Tribunal would also have queried the applicant if she did manage to avoid the rape, how she did so.
The details surrounding how the applicant lived in the jungle for one week are also scant and there is little realistic detail to persuade the Tribunal that this event occurred. For example, the Tribunal has questions about the kind of shelter, if any, that was provided to her and whether her captors provided her with some sustenance over the claimed week she had been kidnapped and held against her will.
Other gaps in the applicant’s narrative involves her claims that after a week she was able to flee her abductors to run to the city for help. The Tribunal would have asked the applicant what strategy she had used to ensure the gangsters were not aware that she had escaped given she was outnumbered by them. The Tribunal has serious concerns about this vital claim in the applicant’s account.
Other gaps in the applicant’s testimony involve whether the applicant had evidence that she had actually been hospitalised as a result of her abduction and the nature of her injuries, if any. The Tribunal would also have asked the applicant to clarify what she meant when she claims she was “wide awake” in hospital; had she fallen into a coma for example, or had she been in an induced coma or none of these. There is no evidence before the Tribunal regarding the applicant’s stay in hospital and her condition while she was there.
The applicant’s assertions in her application also run contrary to the significant and extensive country information set out in the Departmental decision about the government and its instruments’ approach to organised crime, rape and related offences, gangs and general criminal conduct. At a hearing the Tribunal would have asked the applicant why in her view the government of Taiwan was corrupt and the police ineffective.
The Departmental decision states that Taiwan has a low crime rate and has one of the lowest violent crime rates worldwide. Country information shows that there is extensive CCTV coverage throughout Taiwan, which plays a significant role in deterring the majority of criminal activity, and most streets in Taiwan are generally safe.[1]
Furthermore, the Department has referred to country information which illustrates that the nature of organised crime has shifted to less serious crimes, in part due to legislation such as the Organized Crime Prevention Act and that the collusion between politics, business and organised crime, dubbed ‘hei jin’ or black gold, had a significant impact on business in the early 2000s, but that police and criminology experts say that the gangs no longer have the resources to run sophisticated criminal operations.[2]

In addition, the law criminalises rape, including spousal rape, and domestic violence in Taiwan[3]. While the Tribunal acknowledges that as the country information shows there are cultural impediments to the reporting of sexual crimes and domestic violence, reforms implemented in recent years have improved protections for accusers and encouraged reporting of rape and sexual assault, which appears to have increased rates of prosecution and conviction.[4] Moreover, the law establishes the punishment for rape as a minimum of five years’ imprisonment, and courts usually sentenced convicted individuals to terms of five to ten years in prison.[5] The law also allows prosecutors to investigate complaints of domestic violence even if the victim has not filed a formal complaint.[6]
In terms of the National Police Administration (NPA), it operates in a low-crime environment and is effective and well-regarded. The NPA’s main objectives are to carry out police and law enforcement in Taiwan, maintain public order, uphold the safety of its citizens and society, prevent hazards and promote the welfare of its citizens.[7] The constitution prohibits arbitrary arrest and detention and this is generally observed.[8] Civilian authorities maintain effective control over the security forces, including the NPA.[9] Excessive use of force by the police is relatively rare and attorneys are allowed to monitor interrogations to prevent torture.[10]
Given this country information the Tribunal would have liked to ask the applicant to explain why it was that the police who she claims she spoke to were not efficient in filing a report and did not enforce the law as required, as the country information does not point to the police acting in collusion with gangsters in Taiwan as claimed.
The country information on the judiciary in Taiwan is similarly positive as it is independent and court rulings are considered fair.[11] In June 2019 the Legislative Yuan passed an amendment to the Judges Act that toughens disciplinary action against judges that commit wrongdoings.[12]
Considering this country information which has been well-researched by the Department, the Tribunal is unable to find evidence that the police are so sloppy in Taiwan as to not investigate serious crimes such as abduction, sexual harassment, attempted rape and false imprisonment as the applicant claimed.
The Tribunal also queries the applicant’s claims that she relocated within Taiwan on several occasions to different locations. The Tribunal has questions about when such relocation occurred precisely and how long she remained in each location. Other gaps in the information relate to how the applicant managed to fund her stay across the country.
The Tribunal finds that the applicant has failed to establish her claims. On the very limited evidence she has provided and given the country information regarding Taiwan, and taking into account that the applicant declined to attend a hearing to meaningfully put forward her claims, the Tribunal does not accept that:
·Early in 2015 in New Taipei City the applicant was bullied by gangsters.
·On the first night they sexually harassed the applicant, but she was successfully able to escape.
·After a few days the applicant was walking in the night market street, and they saw her and forcibly abducted her into a van.
·The applicant shouted for help, but no one would help her.
·They abducted and kidnapped the applicant and attempted to rape her.
·The applicant was held hostage in the jungle around a week by her captors.
·The applicant after around a week was able to successfully run from that place to the city area to seek help.
·The applicant went to the police, but they would not help her. They just sent her to hospital.
·After the applicant was wide awake, she was discharged from hospital, and she returned to the police, but they would not take a report or investigate her matter.
·The applicant went to seek assistance from the police daily but was told that if she continued with the matter, they would catch her and send her to jail.
·Police, as alleged by the applicant, obtain benefits from gangsters and work in collusion with them.
·The government of Taiwan and the police are too corrupt and would not assist her.
·The applicant relocated to various locations in Taiwan, but no one was able to help her.
The Tribunal has not accepted the applicant’s individually or cumulatively and has rejected them. Not least because the applicant’s claims are general and do not provide enough specific realistic information, leading the Tribunal to have many unanswered questions about what the applicant claims occurred to her. As such, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm on return to Taiwan now or in the reasonably foreseeable future. The Tribunal does not accept that the applicant is of interest to unidentified gangsters or any state authorities acting in collusion with gangsters for any reason under s.5J(1).
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).
Complementary protection
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 has also 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 the applicant will suffer significant harm. The real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution. The Tribunal having rejected the applicant’s claims, individually and in their totality, finds that it is not satisfied that there are substantial grounds for believing that there is a real risk she will suffer significant harm due to any adverse profile with any state or non-state actors such as gangsters for any reason, and the Tribunal rejects that the applicant will be arbitrarily deprived of her life; or that the death penalty will be carried out on her; or that she will be subjected to cruel or inhuman treatment or punishment; or that she will be subjected to degrading treatment or punishment by non-state or state actors.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[1] ‘Taiwan 2020 Crime and Safety Report’, Overseas Security Advisory Council (OSAC), US Department of State, 17 March 2020.

[2] ‘Is Taiwan’s Organized Crime Receding or Going Deeper Underground?’, Tim Ferry, American Chamber of Commerce in Taipei, 24 May 2016, Is Taiwan's Organized Crime Receding or Going Deeper Underground? - Taiwan Business TOPICS (amcham.com.tw).

[3] ‘Freedom in the World 2020: Taiwan’, Freedom House, 5 March 2020, p.12, Taiwan: Freedom in the World 2020 Country Report | Freedom House.

[4] Ibid.

[5] Country Reports on Human Rights Practices for 2019 – Taiwan (Republic of China), US Department of State, 11 March 2020, p.11, Section 6, Taiwan - United States Department of State.

[6] Ibid.

8
Country Reports on Human Rights Practices for 2019 – Taiwan (Republic of China), US Department of State, 11 March 2020, p.5, Taiwan - United States Department of State.
ibid, p.16.

9

10 ‘Freedom in the World 2020: Taiwan’, Freedom House, 5 March 2020, p.12, Taiwan: Freedom in the World 2020 Country Report | Freedom House.

12 ibid.

[2024] AATA 2326

13 March 2024

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