2202378 (Refugee)
[2025] ARTA 1825
•28 August 2025
2202378 (REFUGEE) [2025] ARTA 1825 (28 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2202378
Tribunal:General Member J Wilson
Date:28 August 2025
Place:Canberra
Decision:The Tribunal affirms the decisions under review.
CATCHWORDS
REFUGEE – protection visa – Taiwan – incident at street food stall during return visit – first applicant wife propositioned and second applicant husband punched – perpetrators related to gangsters and applicants reported to police – application for protection made as first applicant’s student visa due to expire – unexplained discrepancies in claims and evidence – no appearance by second applicant – country information – low crime rate and effective police – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BZAAH v MIAC [2013] FCAFC 72; (2013) 213 FCR 261
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 February 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (‘Act’).
The applicants, who claim to be nationals of Taiwan, applied for the visas on 1 February 2021.
The delegate refused to grant the visas on the basis that the applicants satisfied neither the refugee criterion (s 36(2)(a) of the Act) nor the complementary protection criterion (per s 36(2)(aa) of the Act). Specifically, the delegate considered relevant country information and found that effective protection measures per s 5LA of the Act were available, such that the applicants did not have a well-founded fear of persecution, and therefore did not meet the definition of ‘refugee’. Similarly, with respect to the complementary protection criterion, the delegate found that the applicants could obtain protection such that there would not be a real risk that they will suffer significant harm as outlined in s 36(2B)(b) of the Act. The delegate did not make any findings of fact with respect to the credibility of the claims.
The applicants lodged their application for review with the (then) Administrative Appeals Tribunal (‘AAT’). As the application for review was not determined by 14 October 2024, when the AAT became the Administrative Review Tribunal (‘Tribunal’), the application is to be determined by the Tribunal in accordance with the provisions of the Administrative Review Tribunal Act 2024 (Cth).
On 13 June 2025 the Tribunal sent a hearing invitation to the applicants’ nominated representative via email. The hearing invitation was addressed to both the primary applicant and the second applicant and invited the applicants to appear before the Tribunal on 1 July 2025 in Canberra.
On 30 June 2025 the applicants’ representative responded to the Tribunal attaching a Response to the Hearing Invitation form, which indicated that only the primary applicant intended to appear at the scheduled hearing.
The primary applicant appeared before the Tribunal on 1 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The second applicant did not appear for the hearing.
The applicants were represented in relation to the review by a registered migration agent, however the representative did not attend the hearing.
BACKGROUND
The primary applicant is a [Age]-year-old female. The second applicant is her husband, who is presently aged [Age]. The primary applicant arrived in Australia as a working holiday maker in 2017. She held a second working holiday maker visa before being granted a student visa. She claims to have met her husband in Australia.
The applicants lodged a protection visa application on 1 February 2021. Their joint claims relate to a single event that is claimed to have occurred on a return trip to Taiwan in 2019, which is further detailed below.
Evidence before the Department
In the protection visa application, the primary applicant claimed she was born in New Taipei City and that she speaks, reads and writes Mandarin. She claimed to have been employed in Taiwan as [an occupation 1].
She claimed to not have travelled internationally prior to coming to Australia. Her written declarations provided in the protection visa application state she was in a de facto relationship and that the relationship had commenced in January 2019.
In the protection visa application, the second applicant also claimed to speak, read and write Mandarin. He claimed he has worked as both [an occupation 2] and a manager of a [business] in Taiwan.
The applicants’ protection visa applications were accompanied by a one-page statement signed by the primary applicant dated 22 November 2020 (the Personal Statement). The Personal Statement is written in a language other than English and accompanied by an English translation that contains a statement that it was translated by Nan Cao on 21 January 2021 with an accompanying Migration Agent Registration Number.
In the Personal Statement, the primary applicant claimed to have returned to Taiwan in February 2019 to visit family. She claims that on the night of 6 November she and her de facto partner went to a street food stall. The Personal Statement states:
‘There were three young men sitting and drinking beside our table. One of them came to me and said: “Litter (sic) sister, can you drink with us together?” My partner said to him ‘Go away!” He then swore at my partner and then punched my partner twice. My partner punched back to him…’
The Personal Statement further claims that two policemen arrived shortly after the incident and told the applicants not to make trouble because the perpetrators were related to gangsters and that the police then left. The primary applicant then claims to have been scared so walked home but was followed. She said the next day when she went out, she found that someone was still following her, so she stayed home for the day. She further claims that that night she received a phone call from the police saying that someone reported her and her partner as being involved in a fight and her and her partner were asked to report to the police station. She claims they were scared and bought plane tickets to return to Australia promptly (‘incident’).
By way of further supporting documents, the applicants provided the bio-pages of their Taiwanese passports. No other documentary evidence was supplied.
There is no evidence on the Departmental file to suggest an interview occurred with the delegate prior to the primary decision being finalised.
Evidence before the Tribunal
There were no pre-hearing or post-hearing submissions provided to the Tribunal.
Oral evidence provided at hearing
At the outset of the hearing the Tribunal explained the operation of s 5AAA of the Act to the primary applicant, namely that it was important the primary applicant provided the Tribunal with as much detail and evidence to support her claims as possible.
The primary applicant did not seek to introduce any new claims or evidence at the hearing.
At the commencement of the hearing, the Tribunal queried why the second applicant did not appear for the hearing. The primary applicant told the Tribunal he had recently left their home in New South Wales to go to the Northern Territory for work. The Tribunal telephoned the second applicant to ask whether he was seeking to rely on the primary applicant’s claims and evidence, or whether he wished to present his own case. The Tribunal confirmed verbally with the second applicant, through the assistance of an interpreter, that he did not seek to introduce any new claims or evidence, and that he sought to rely entirely on the primary applicant’s claims because the event had happened to them both. The hearing proceeded on that basis.
When asked, the primary applicant first stated she had completed her protection visa application herself, and then revised her response to say that she had prepared the application responses, and her migration agent had translated them and completed the form for her.
The primary applicant gave oral evidence that since arriving in Australia she had lived in Sydney, Melbourne, [City 1] and now resides in [City 2], New South Wales. She stated that she met her husband in [City 2] and that they married in January 2023 in Melbourne. Since arriving in Australia, she has worked in [workplaces 1-4].
The primary applicant shared information about her early life in Taiwan. She said she has [a] sister and her father in Taiwan. She said that prior to coming to Australia she had lived with her father in New Taipei. She said her father works as [an occupation 3], and that she and her sister give him additional money to support him financially. The applicant explained that her sister runs her own [workplace 5] in Taiwan. The primary applicant also provided information about her in-laws, explaining that her mother-in-law and father-in-law also live in Taiwan, are retired and live from their pension coupled with income they derive from two investment properties.
The primary applicant claims to have been prompted to come to Australia in 2017 by two friends who were already living in Australia. She stated she came to enjoy a new global opportunity. She said she had fun in Australia and made the decision to apply for a second working holiday visa to extend her stay, before later enrolling in a course of study in the [work sector 1]. She said that she applied for her protection visa around the time her student visa was due to expire. She said she learnt of the option of a protection visa through her current representative, who had informed her that if she feared persecution that she could apply for a protection visa.
The primary applicant claims she fears harm because her father told her there were hooligans or gangsters around their house and that they have asked about the applicants’ whereabouts. She said she fears that those people may harm her or her husband. When asked for greater clarity about the source of harm, the primary applicant said she thinks it was the people who had harassed her by the roadside on the night of the incident. She said there was no other reason she feared harm.
When asked by the Tribunal why she and her husband would be targeted, she said she did not know but thought that because the people were drinking alcohol that they could not control their behaviour. She further added they might hold a grudge, because her husband had fought back.
When asked, the primary applicant stated that prior to the incident, she had never had any encounters with criminal groups or the Taiwanese police.
The Tribunal shared country information and its concerns about the credibility of the primary applicant’s claims with her at the hearing and provided her with an opportunity to respond.
The details of the evidence relating to the protection visa claims, the relevant country information, and the primary applicant’s responses to the Tribunal’s concerns is considered below.
RELEVANT LAW: 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) of the Act. 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) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
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) of the Act, 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, 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: FINDINGS AND REASONS
The issue in this case is whether the applicants face a real chance of serious harm, or a real risk of significant harm, if they are returned to Taiwan now, or in the reasonably foreseeable future. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity, Nationality and Receiving Country
The applicants’ identities are not in dispute. The applicants provided copies of the bio-pages of their Taiwanese passports to the Department and a copy of those documents has been reviewed by the Tribunal. The Tribunal is satisfied as to the applicants’ identities.
In determining the nationality of the applicants and the ‘receiving country’ for the purposes of the Act, the Tribunal notes that Australia does not recognise Taiwan as a sovereign nation and that the issue concerning Taiwan’s identity is complex.
Whilst the term ‘receiving country’ is defined in s 5(1) of the Act to refer to ‘country of nationality’ or ‘country of which a non-citizen is a national’, the term ‘country’ is not specifically defined. Consistent with an approach that the term ‘country’ should not be construed in a narrow technical way, and having regard to the requirements of statehood set out in the Montevideo Convention on the Rights and Duties of States [1] and judicial authority identifying relevant features of a country to include an ability to confer nationality on a person, possession of a system of domestic law and a sovereign law-making body, and responsibility for national security,[2] the Tribunal finds that Taiwan (Republic of China) meets the requirements to be recognised as a country of the purposes of the refugee definition and definition of ‘receiving country’ in s 5(1) of the Act.
[1] See Convention on the Rights and Duties of States, art 1, which refers to the following features: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter relations with other states.
[2] BZAAH v MIAC [2013] FCAFC 72; (2013) 213 FCR 261 at [28] and [46].
Accordingly, based on the documents provided by the applicants, the Tribunal finds the applicants are citizens of Taiwan, and accordingly their protection claims will be assessed against Taiwan as the receiving country. There is no evidence to suggest the applicants have a right of entry to any other country.
Claims of prior harm in Taiwan
In the Personal Statement that accompanied the applicants’ protection visa application, the applicants claim, in summary, to have been assaulted on ‘6 November’ by a group of three men. The details of the written claims are extracted at paragraphs [15]-[16]. While the applicant did not specify the year of the claimed incident, based on the movement records that show the applicants departed Australia in October 2019, the Tribunal considers that if the claimed incident occurred, it would have had to occur in November of 2019. The Tribunal notes that the claim contained in the Personal Statement that the applicants returned to Taiwan in February 2019 is not consistent with the movement records available. The Tribunal prefers the data contained in the movement records because it is verifiable and, on that basis, does not accept that the applicants returned to Taiwan in February 2019 as claimed. Rather, on the movement records, the Tribunal finds that the applicants departed Australia in late October 2019. On the flight data available, the applicants departed Australia on a China Airlines flight bound for Taiwan. On that basis, the Tribunal accepts the applicants returned to Taiwan for a period of approximately two weeks.
In the hearing, the Tribunal asked the applicant to recount the details of the night of the incident. The primary applicant said they had attended a roadside stall at a night market in Taiwan sometime at the end of October or beginning of November, and that suddenly people shouted at them to ‘come and drink with us’. The primary applicant stated the men asked her to share a drink with them, and that when she refused, they touched her, which made her feel uncomfortable. She later added that they touched her body and grabbed her arms. She said her husband tried to fend them off, and then the matter became violent.
When asked to clarify how many perpetrators were present, the applicant said there were four men sitting next to them, however that they made a phone call during the incident and that a further one to two people appeared. When asked how she escaped the ordeal, the primary applicant said the couple managed to break free and run to the police station. She said that when she arrived at the police station the perpetrators were sitting with the police enjoying tea. She said the police officer had told the applicants that the perpetrators knew the police and senior government officials. She said she does not recall the police taking any notes and that she was not provided with any police statement.
When asked how she got home after leaving the police station, she told the Tribunal she had caught a taxi. The Tribunal asked the applicant to confirm whether the police had ever attended the scene of the incident, which she confirmed they had not.
The applicant claims she suffered some bruising, but her husband was injured, with a bleeding arm from being pushed to the ground and scratched. She said they did not seek medical treatment but applied their own ointments.
When asked if she had seen the perpetrators before she said she had not and could provide any reasons why she would be targeted specifically.
When asked if any by-standers had witnessed the incident, the primary applicant stated ‘no’, however later amended her evidence to say there was another group present, who were eating, and that the proprietor of the food stall had witnessed the event. She said no-one came to their assistance.
When asked what happened after the incident, the primary applicant said the police had called her home, then said the police telephoned her father’s mobile phone, and then her mobile phone. She then said the police told her to apologise to the perpetrators, drink some tea, and resolve the dispute. She said she did not trust the police and told them she did not have time.
In further evidence, the primary applicant also said that her father had told her that the perpetrators have come looking for her on five to six occasions. When asked how the perpetrators would know where she lived, she said she presumed the police had provided them with her home address. She said the perpetrators told her father and their neighbour that they would ‘find her because they have a group’ and ‘have people and many methods and ways to find you’. She said the last time that her father had told her that people were looking for her was at ‘Chinese New Year this year’ (which the Tribunal notes would be approximately January or February 2025). The primary applicant did not provide any further detail as to who had appeared at her father’s home on that occasion or what discussion had taken place.
Findings of Fact
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, an applicant's claim to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Relevantly to claims for protection, section 5AAA of the Act provides 'it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim'. The Tribunal is not required to accept uncritically any of the allegations made by an applicant.[3]
[3] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasaf v MIEA (1985) 6 FCR 155 at 169 – 170.
In the absence of documentary evidence or witness evidence to support the claims, the Tribunal has adopted a liberal attitude and has turned to country information to assess the likelihood that the events could have occurred as described. The Department of Foreign Affairs and Trade has not published a country information report for Taiwan. For that reason, the Tribunal has considered further country information that suggests that:
a.the police are effective, and the crime rate is low in Taiwan. Violent crime rates are amongst the lowest in the world and that there is extensive CCTV coverage throughout Taiwan that records most activity occurring outside the home, and which deters criminal activity. The streets are generally considered safe;[4]
b.Taiwan is ranked 25 of 180 countries in the 2024 Corruption Perception Index with a score of 67/100, suggesting there is low to medium level of corruption.[5] (By way of comparison, Australia is ranked 10th with a score of 77);[6]
c.the Taiwanese law provides criminal penalties for corruption by officials and authorities have generally implemented corruption controls effectively. During 2023, 19 high-ranking officials, 41 mid-level, 114 low-level and nine elected officials were indicted for corruption.[7]
d.an anti-corruption body was set up in 2011 and an educated population ensures high-profile corruption charges are publicised.[8]
[4] US Department of State, ‘Taiwan Country Security Report’, Overseas Security Advisory Council (online, 10 September 2024) 1-2 <
[5] Transparency International, ‘Corruption Perception Index 2024’ (online, 2025) < Ibid.
[7] US Department of State (n4) 4.
[8] BTI, ‘BTI 2022 Country Report Taiwan’ (online) < bti-project.org/fileadmin/api/content/en/downloads/reports/country_report_2022_TWN.pdf>, 11.
On the oral evidence provided by the primary applicant, she fled the incident on foot and ran to the nearest police station. Having regard to the claimed chain of events, it would have required the perpetrators to arrive at the police station first, and there be sufficient time for the police to make tea, if such a custom exists in Taiwan, before the applicant arrived. The primary applicant provided no further details to explain how the circumstances could have occurred in the manner described. The Tribunal is not persuaded by the primary applicant’s oral evidence.
The Tribunal has also considered the available country information, and on that information considers the probability of the applicants’ claims occurring as described is low. The Tribunal reaches this conclusion because the country information suggests the Taiwanese Police Force is generally effective and that Taiwan has low crime rates, coupled with an extensive CCTV presence in public places which means the streets are generally safe. The claims sit in contrast to the country information, which leads the Tribunal to question the credibility of the claims.
Additionally, the Tribunal has identified differences between the primary applicant’s written and oral account of events, which leads the Tribunal to further query the credibility of the claims. Specifically, the Tribunal raised with the primary applicant differences in her account of the events with respect to the number of perpetrators, and the chain of events that followed the incident, including how she came to interact with the police. In the Personal Statement the applicant wrote that ‘someone called the police, and two policemen arrived shortly’ [at the night market stall]. In contrast, in the hearing the applicant said the police never attended the scene of the incident.
When asked to resolve the apparent differences in her claims, the primary applicant said she thought two plain clothed police officers came to the market stall at around the time of the incident, however she did not ask for their identity documents, so couldn’t be sure they were police – however that begs the questions of why she would have written in her Personal Statement that two police arrived shortly, told the couple to not make trouble and then left. The Tribunal is not persuaded by the applicant’s explanation. There are also unexplained differences in the stated methods of travel on the night of the claimed incident, namely that in the Personal Statement the primary applicant wrote she walked home, however in oral evidence she told the Tribunal she had caught a taxi after leaving the police station. The Tribunal has not been able to reconcile the differences in the evidence.
The Tribunal notes that a passage of some seven years has passed between the claimed event and the Tribunal hearing. In the applicants’ favour, the Tribunal has considered the possibility that the primary applicant’s recollection of the relevant events may have faded. However, while it is reasonable that the finer details of what precise words were exchanged may have been lost over time, the substantive detail of locations and modes of travel are less likely to be impacted by memory. Accordingly, the Tribunal does not consider the passage of time or the primary applicant’s recollection are the source of the disparities in the evidence.
Additionally, the Tribunal is concerned that the claims concerning threats of harm, surveillance and monitoring are vague and lacking in detail. The Tribunal has considered the primary applicant’s oral evidence at hearing that her father last received contact from the alleged perpetrators around the time of Chinese New Year 2025, however there was no accompanying detail as to who made the contact, what was discussed, or any relevant details. The Tribunal might expect that detail to be forthcoming, especially noting the primary applicant’s earlier evidence that her father worked in the [work sector 2] and might be expected to have a greater focus on such matters, especially relating to a close family member.
The Tribunal notes that despite the second applicant being invited to attend a Tribunal hearing he elected not to give evidence, particularly in circumstances where he was a witness to the claimed incident. Given the important consequences for the applicants, it strikes the Tribunal as odd that he would choose to attend work rather than attending the hearing to give supporting evidence. Accordingly, the Tribunal infers his evidence would not have assisted the primary applicant’s claims.
Having regard to the totality of the evidence, including the country information, the Tribunal does not accept that the applicants were involved in a physical altercation on the night of 6 November 2019, or any other night in Taiwan. The Tribunal does not accept the primary applicant was harassed by unknown individuals, nor that the second applicant needed to come to her defence or suffered a physical assault. It follows that the Tribunal does not accept that the applicants ever interacted with police as claimed, or that they were denied police assistance. It also follows that the Tribunal does not accept that the primary applicant was followed or surveilled subsequently, or that the applicants have experienced monitoring or threats, or that the primary applicant’s father has continued to receive contact from claimed perpetrators. There is simply insufficient evidence before the Tribunal to make out those claims and the evidence available contains too many disparities to satisfy the Tribunal the incident occurred as claimed.
On the applicants’ evidence, they do not fear harm for any other reason.
Do the applicants satisfy the refugee criterion for protection?
The issue to be determined is whether the applicants’ face a real chance of serious harm should they return to Taiwan now or in the reasonably foreseeable future.
Primary applicant
As the Tribunal has not accepted the primary applicant’s claims, and because there is no evidence that supports the claim that she will face harm or mistreatment if she returns to Taiwan, the Tribunal is not satisfied that the primary applicant faces a real chance of serious harm (or any harm) now or in the reasonably foreseeable future if she returns to Taiwan.
Accordingly, the Tribunal is not satisfied that the primary applicant has a well-founded fear of persecution per s 5(J) of the Act. As the Tribunal is not satisfied the primary applicant has a well-founded fear of persecution it is not satisfied that the applicant is a refugee per s 5H of the Act. Because the primary applicant does not satisfy the definition of s 5H of the Act, the Tribunal is not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Second applicant
The second applicant has sought to rely on the primary applicant’s claims and evidence.
On the basis that the Tribunal is not satisfied that the primary applicant meets s 36(2)(a) of the Act, for the same reason it is not satisfied the second applicant meets s 36(2)(a) of the Act.
Do the applicants satisfy the complementary protection criterion for protection?
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa).
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB,[9] 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 (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
Primary applicant
[9] MIAC v SZQRB (2013) 210 FCR 505.
Following the Tribunal’s findings set out above that the primary applicant will not face any harm now or in the reasonably foreseeable future if she is returned to Taiwan, for the same reason the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to Taiwan, that there is a real risk she will suffer significant harm. Therefore, the Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Second applicant
The second applicant has sought to rely on the primary applicant’s claims and evidence.
On the basis that the Tribunal is not satisfied that the primary applicant meets s 36(2)(aa) of the Act, for the same reason it is not satisfied the second applicant meets s 36(2)(aa) of the Act.
CONCLUSION
For the reasons given above the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
Date of hearing: 1 July 2025
Representative: Mr Cao, PR Solutions (MARN: 0103659)
(Not present at the hearing).
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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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