2200837 (Refugee)
[2025] ARTA 1811
•21 August 2025
2200837 (Refugee) [2025] ARTA 1811 (21 August 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2200837
Tribunal:General Member C Stokes
Date: 21August 2025
Place:Adelaide
Decision:The Tribunal affirms the decision under review.
Statement made on 21 August 2025 at 2:47pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – fears harm from gangsters/loan sharks due to failed online business – delay in applying for protection – holder of numerous different visas in Australia – credibility concerns – lacking subjective fear of returning to home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v SZQRB (2013) 210 FCR 505
Selvadurai v MIEA (1994) 34 ALD 347Any 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 then Minister for Home Affairs on 17 January 2022 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 the Republic of China (Taiwan), applied for the visa on 2 April 2020. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
On 22 January 2022, the applicant applied to the then Administrative Appeals Tribunal (AAT) for review. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
The applicant appeared before the Tribunal on 31 July 2025 by videoconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or the ‘complementary protection’ criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
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.
REASONS AND FINDINGS
The applicant’s migration history
The applicant first arrived in Australia as the holder of a visitor visa in March 2008 and returned as the holder of a working holiday visa in March 2011 and departed in January 2012. She then returned in March 2012 as the holder of a further working holiday visa staying for a year. The applicant returned for three months as the holder of a visitor visa later in 2013. The applicant then held a student visa and stayed from December 2013 to January 2015, returned again on a student visa in May 2015 and has not departed since. The applicant applied for the protection visa on 2 April 2020.
Application to the Department
In the application to the Department, the applicant claimed she feared harm in Taiwan at the hands of gangsters due to a failed online business.
The applicant also provided the Department with a copy of her Taiwanese passport.
The applicant was not invited to attend an interview with the delegate.
Application to the Tribunal
The applicant applied to the then AAT on 22 January 2022. She provided a copy of the delegate’s decision and notification letter. She did not provide any additional information, claims, or evidence with her application.
At the hearing the applicant gave evidence about her background and claims to fear harm at the hands of a loan shark. She also gave evidence that she is married to a Malaysian citizen who also has a protection visa application before the Tribunal as he also owes money to a loan shark in Malaysia. Following the hearing the applicant provided the Tribunal with her marriage certificate and her husband’s Tribunal application number.
REASONS AND FINDINGS
Country of reference: Republic of China (Taiwan)
The applicant claims to be a Taiwanese national and provided a copy of her Taiwanese passport as evidence. I accept she is a Taiwanese national and find Taiwan is her receiving country.
Delay in applying for protection
At the hearing, I discussed with the applicant her delay in applying for protection given she last arrived in Australia in May 2015 and did not apply for the protection visa for nearly 5 years. The applicant gave evidence that she held a student visa until 2018 and she did not have enough money by that point to repay the gangsters, nor to pay the tuition for a further student visa and a friend of hers only told her about protection visas in 2020.
I have considered the applicant’s explanation, as well as the case law and guidance on assessing credibility.[1] I do not accept there is a satisfactory explanation for such a lengthy delay in applying for protection (of nearly 5 years). It would be expected, given she had been the holder of a number of different visas in Australia since 2008 that the applicant would have sought to regularise her status in Australia and sought assistance to remain lawfully in Australia, including seeking protection earlier than she did. The delay in lodging the protection visa application, coupled with her migration history of spending a significant amount of time in Australia since 2011 is of concern. I find that the failure of the applicant to apply for protection earlier than she did leads me to have concerns about the applicant’s overall credibility and to the genuineness and extent of her claimed subjective fear of persecution and significant harm.
[1] See Selvadurai v MIEA (1994) 34 ALD 347 at [11]; AAT, Migration & Refugee Division – Guidelines on the Assessment of Credibility, July 2015; ART, Guide to Refugee Law in Australia, October 2024; Department of Home Affairs, The Protection Visa Processing Guidelines - Procedural Instruction, 1 August 2023 at [15] Part 13 – Assessing Credibility
Claims to fear harm at hands of gangsters/loan sharks
The applicant claimed to have invested in her friend’s business who sold [goods] online. She met the friend ([Friend A]) though a previous job. She claimed they started the partnership in 2014 and the applicant invested around NT$[amount] of her savings (approximately AU$[amount]). She asked her parents to provide the cash to [Friend A] and there was no contract just an oral agreement that [Friend A] would manage all the finances and operations of the business, and the applicant would receive 30% of the profits. She claimed to have never received any profits or return for her investment and that there were no records of the investment or business itself as she trusted her friend [Friend A]. She claimed [Friend A] passed away from [Medical condition 1] a few years ago. The applicant further claimed that there was a large order which a friend of [Friend A] went to buy from [Country 1]. They paid the merchant for the order, which was for [goods] to be shipped to Taiwan. The applicant claimed that when the order didn’t arrive they were unable to contact the merchant and [Friend A] asked for more money from her to refund customers who had pre-paid for the goods. The applicant said she didn’t have any money to provide. [Friend A] then went to a loan shark to borrow NT$[amount] and named the applicant as guarantor by providing her ID and forging her signature. She did not know the rate and only found out about the loan when gangsters came to her home in 2015 asking her to repay the debt. They gave her 3 days to repay and she moved to Taipei before the 3 days were up however they found her there and threatened and threw eggs. She called the police but they had left by the time the police arrived. She borrowed NT$[amount] from a friend to repay part of the debt by the loan sharks were not satisfied and they hit her in her leg and threatened her not to report them to the police. She therefore fled to Australia. She claimed they tried to ask her family and friends where she was and for her phone number after she left for Australia. She claimed to have not sought any legal or financial advice about the situation, she also claimed she has not paid any more back to the loan sharks, not repaid her friend whom she borrowed NT$[amount] from and has not had any contact with the loan sharks or that friend since arriving in Australia.
I found the applicant’s evidence regarding the circumstances in which she claimed to have invested a large sum of money to be vague and implausible. The applicant was unable to provide any documentary evidence about the investment or existence of the business. I do not accept that she would give such significant savings to invest in a business without keeping any records of that investment or of the business itself. While I accept the applicant would not be able to get any evidence from [Friend A] who has since passed away, she did not provide any corroborative evidence from anyone else, including her parents about the cash investment or the business. I do not accept she did invest in such a business. It follows that I do not accept that a large order went missing. In any event, her evidence about the order was vague and she was unable to provide any real details about the order, including the name of the friend who travelled to [Country 1] to buy the goods, the name of the merchant nor the value of the order.
I also do not accept that [Friend A] borrowed money from loan sharks or that loan sharks sought repayment from the applicant. Again her evidence regarding the debt and threats from the loan shark was vague and lacking in detail. She was unable to say what the interest rate was or provide any evidence of the debt or threats made. I also do not accept she would have borrowed such a large sum from a friend and not made any repayments to them since living in Australia. She also did not provide any corroborative evidence from anyone, including [Friend A’s] family or her parents about the debt or threats. I do not accept that loan sharks threatened the applicant for money.
Finally, I am not satisfied that the applicant has a subjective fear of returning to Taiwan. The combination of her applying for a protection visa only after she could no longer afford to study and apply for a further student visa; her responses to the Tribunal’s concerns about the delay in seeking protection which indicated that she understood the implications of applying for a protection visa meant she could no longer travel to Taiwan; and her lack of efforts to seek legal or financial advice about the alleged forged guarantor documents and/or debt or to make any repayments or arrangements regarding the loan in order to mitigate risks to herself in Taiwan, when considered together, indicates to me that she is a person who is lacking a subjective fear of returning to Taiwan.
I am not satisfied there is a real chance that she would face serious harm at the hands of loan sharks or gangsters, or for any other reason, now or in the reasonably foreseeable future on return to Taiwan.
For the above reasons, the applicant does not meet the criteria in 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 in s 36(2)(aa).
I have found the applicant does not face a real chance of serious harm in Taiwan. ‘Real chance’ and ‘real risk’ have been found to equate to the same threshold.[2] For the same reasons given above, I find there is not a real risk the applicant will suffer significant harm.
[2] MIAC v SZQRB (2013) 210 FCR 505
The applicant does not meet the criterion in s 36(2)(aa) of the Migration Act.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no evidence 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. As mentioned above, the applicant gave evidence her husband is a Malaysian citizen who also has a review of a protection visa refusal application before the Tribunal. She did not provide any evidence that he has been successful in that application or that he has been granted a protection visa. I understand from the Tribunal’s records that his review application has not yet been finalised. Therefore, as at the time of writing this decision, he is not a person who holds a protection visa. Accordingly, I am satisfied that the applicant does not meet the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 31 July 2025
Representative of the applicant: N/A
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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