2211451 (Refugee) - [2025] ARTA 1683

2211451 (Refugee) [2025] ARTA 1683 (27 June 2025)

DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2211451
Tribunal:  General Member S Waring
Date:   27 June 2025
Place:  Brisbane
Decision:  The Tribunal affirms the decision under review.

Statement made on 27 June 2025 at 5:28pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from gang member ex-boyfriend – abuse and threats to applicant and monitoring and threats to family – late claims of pressure to join gang and possession of information about it – limited, inconsistent and unconvincing evidence – no recent contact – sister who provided supporting evidence in Australia at the time and did not witness relationship or claimed incidents – domestic violence legislation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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 on 13 July 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 Taiwan, applied for the visa on 23 December 2020. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or the complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
On 8 August 2022 the applicant lodged an application for review with the former Administrative Appeals Tribunal (the AAT).
On 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it will be continued in the Tribunal in a manner that is efficient and fair. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 30 April 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 issue to be considered in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act.

BACKGROUND

[The applicant] is now [Age] years old having been born in [Location], Taiwan. The applicant first visited Australia [in] September 2016 (when she commenced a working holiday and lived with sister). After departing Australia [in] December 2019, the applicant last returned [in] February 2020 having made previous overseas trips from Australia:
·[Day 1] August 2017 to [Day 2] August 2017
·[Day 1] December 2017 to [Day 2] December 2017
·[Day 1] June 2018 to [Day 2] June 2018
·[Day 1] September 2018 to [Day 2] September 2019
The applicant graduated from high school in 2009 and was later employed in Taiwan as [an occupation] between December 2018 and August 2019. She commenced studying a diploma of [subject] in Brisbane in May 2020.
The applicant’s mother lives as with [some] of her [siblings] in her hometown on [Island], Taiwan. Her sister (the witness in these proceedings) lives in [Town], Queensland. The applicant contacts her mother using Facetime.
The applicant follows the Buddhist religion. She initially settled in [City] Queensland before moving to [Town] Queensland.
Evidence before the Department and the Tribunal
The applicant was not offered an interview by the Department. As such, the evidence taken into account by the decision-making delegate included the applicant’s:
·protection visa application
·December 2020 statement (which accompanied the protection visa application)
·passport and other personal identifiers sighted by the Department as part of an identification test.

In addition to the above documents, the following documents are before the Tribunal:
·the applicant’s submission included in her pre-hearing form
·the applicant’s statutory declaration submitted with her hearing response form
·a statutory declaration made by [Ms A] (the applicant’s sister) submitted with the hearing response form
·an official movement record of the applicant’s transits into and out of Australia.
Evidence given by the applicant and a witness at hearing.
The totality of evidence before the Tribunal is discussed and examined below.
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.

EVIDENCE AT HEARING

The applicant informed the Tribunal that she wished to call her sister ([Ms A]) as a witness at the hearing to give evidence to supplement the statutory declaration submitted by her on 17 April 2025.
Evidence of [Ms A] (the witness)
The witness told the Tribunal that she was able to give first-hand evidence of events that have occurred while the applicant has been in Australia. She considers that the applicant has been ‘her responsibility’ during this time however, she stated that she did not have knowledge of the applicant’s experiences outside of Australia.
The witness arrived in Australia late in 2013 and the applicant came to live with her in September 2016 when the applicant commenced a working holiday here. The applicant then returned to Taiwan (for two months) when their father passed away. The Tribunal enquired when this had occurred but the witness will was unable to recall relevant dates. She stated that her father had died during the COVID epidemic. She recalled the date was 3 December. After a period of recollection, she stated that she was certain the year was either 2021 or 2022.
The witness stated that she herself was unable to return to Taiwan at that time (as did her sister) because she was unable to fly due to COVID restrictions.
The witness is 4½ years older than the applicant. The applicant has, at times, lived with her in Australia however, she was not ‘close’ with the applicant before her first visit to Australia in September 2016. When the applicant returned to Taiwan between 2018 and 2019 she was only in touch with the applicant through social media. The witness stated that (due to their limited contact) she had “no idea of the applicant’s situation [during this time]” but when her sister came to live with her in Australia, the applicant described to her “what had happened” in Taiwan. The witness stated that her knowledge of the applicant’s experiences in Taiwan was limited to what she was told by the applicant - her role was simply to help her sister to cope.
The witness stated that she had never observed any emails or social media messages (or overheard any phone calls) between her sister and a boyfriend in Taiwan. She stated that “I haven't seen any emails, but when [the applicant] came back to Australia, I did see some harassment messages, but I'm not sure whether it was from her boyfriend, but [the sender] was the other sex… [they were] harassment messages.”
The witness’s further evidence was that she had seen a single message in “2020 when [the applicant had] just come back but I don’t remember the exact month.” When she saw the message she was very surprised and asked the applicant about it. The applicant responded by saying “that is why I don’t want to go back to Taiwan.”
The witness explained that (at that time) she and her sister were both adults. While she still cared about her sister she did not get involved in the applicant’s personal life “if she did not want to tell me voluntarily.”
During the period (around 2020) when the sisters were living apart, they saw each other around 2 or 3 times each week. The witness assessed her sister as being “okay” so she stopped worrying about her.
At the conclusion of her evidence, the witness confirmed that she is unable to provide direct evidence of what happened to her sister while she (the applicant) was in Taiwan. She stated “as for [the applicant’s] experience in Taiwan, I have no way to provide evidence.”
Evidence of [the applicant]
During the hearing, the applicant spoke to the Tribunal with the assistance of the official interpreter as she has limited competency with the English language. [Ms A] (the witness) remained present in the hearing room as a support person only - she did not assist the applicant in giving evidence or in translating what was being said.
The Tribunal queried the applicant’s involvement in preparing the handwritten visa form, the printed statement submitted with the visa form (in December 2020) and the printed statement submitted to the Tribunal (the April 2025 statement).
Initially the applicant said that she had used the translation ‘app’ on her phone to prepare the visa form and the statements. She said “my statement was prepared by myself”. The applicant then corrected herself saying that the “two [printed] statements were prepared by my agent who organised my application.” The applicant further corrected herself (saying there was a misunderstanding) giving evidence that “the most recent statement, that was prepared by myself, but the earlier statement was prepared by the agent.”
The applicant indicated that, when she received the Department’s refusal letter, she decided that a further statement was necessary so she prepared the one submitted in April 2025 herself.
The Tribunal sought details about the agent and the applicant stated the agent was a man introduced to her “by other people” but she could not “pronounce that agent’s name.” Indicating that her interaction with the agent was limited, the applicant stated that “he had a brief interview with me about my situation, my experience in Taiwan. Then he agreed to help me to prepare the application.”
The applicant later identified the agent as [Mr B] and explained that he had visited her ([company]) workplace in [City]. A workmate at the [company] introduced her to [Mr B]. The applicant paid [Mr B] for his services which included:
·   a first meeting when ”he checked with me the details of my experience.”
·   a second contact “about the immigration’s refusal of my application.”
·   contact a “third time about my visa.”
The Tribunal enquired whether [Mr B] was involved in the preparation of the April 2025 statement. The applicant responded in the negative stating the last submission in April was prepared by myself and then I use the software to translate, but then my sister just [did] a bit of revision.”
Threats directed against family in Taiwan
The Tribunal invited the applicant to utilise the assistance of the interpreter to explain, in her own words, what it is she fears about going back to Taiwan. The applicant responded that she is fearful of a boyfriend (she met in December 2018) who is a mid-level gang member that has threatened her family in Taiwan. The applicant knows the boyfriend only as [Mr C] - she does not know his last name.
The applicant stated that there are people (subordinate to [Mr C] in the gang) who are ‘monitoring’ her family and making them feel scared. The applicant has married siblings living in the same building as her mother so she believes [Mr C]’s gang is monitoring her whole family. She stated that it is not [Mr C] personally who is watching her family home and the surveillance is not continuous “they often come around my family to have a look, then they leave [but] after a while they will come back again.”
The applicant indicated that her family feels threatened and that “every time when I contact my family through phone messaging or FaceTime, they always told me…that they were monitoring my family.” The applicant believes that she is the target of this conduct by the gang. According to the applicant, [Mr C] and/or the gang may still intend to harm her because she “still has some evidence of his organisation…those things made me very scared.” The applicant confirmed that she does not know [Mr C]’s full name or the names of others in the gang. She knows that the gang deals in drugs but other than that, the applicant did not disclose the nature of the incriminating evidence she holds on [Mr C] and/or the gang.
The Tribunal enquired why (if [Mr C] had been her boyfriend from around December 2018 to September 2019) she did not know [Mr C]’s full name. The applicant stated “because it's my family's tradition. We respect privacy. So we mainly we are mainly listeners. If the other party doesn't say voluntarily, we wouldn't press them to - we wouldn't probe” and further “during the romance, relationship, romantic relationship, if I asked too many questions [like] ‘what's your name?’ it might offend him.”
The applicant confirmed that she is no longer in a relationship with [Mr C] and has not contacted him since she returned to Australia in February 2020. The Tribunal referred to the applicant’s April 2025 statement which records – using the present tense – that her [brothers] are angry with her because of her boyfriend [Mr C], believing that their relationship is dragging the family down. The Tribunal enquired why this statement indicated that [Mr C] continues to be her boyfriend. The applicant’s comment was that the statement contained a typographical error mis-describing [Mr C] as her current boyfriend. The statement was meant to say [Mr C] is her ‘ex-boyfriend’.
Early in the hearing, the applicant described the ongoing threatening conduct of [Mr C] and/or the gang as being mostly ‘passive’ in nature - constituted by their continued presence outside her family home which is occupied by her mother and [married] siblings.
Late in the hearing, the Tribunal enquired how the applicant’s family members were able to link the people monitoring their home to [Mr C] and/or the gang or to interpret the ‘monitoring’ as a threat to herself (the applicant). The Tribunal asked the applicant whether, for example, the person monitoring the house ever knocked on the door (or issued threats to her mother) so that her mother knows for certain that these people are related to [Mr C]. The applicant replied “yes.” The Tribunal asked whether the applicant was stating that someone had come to her mother’s door and threatened her verbally. The applicant replied “correct.”
The applicant did not disclose what the gang member said to her mother and did not state when this overt conduct had occurred. The Tribunal enquired why evidence of an overt act (directed at the applicant’s mother) was not brought forward earlier – either in the hearing (by the applicant or the witness) or in the applicant’s documented statements. The applicant indicated that she knew little about the overt incident “because my mom did not want me to be concerned so she did not tell me.”
As the applicant stated that her mother was very upset about the overt incident (and the gang’s continued monitoring of her home), the Tribunal enquired whether evidence of the gang’s conduct could be adduced by way of statements from her mother and/or siblings.
The applicant responded that her “mother is illiterate, she didn't go to school, therefore she could not do any statement that to support my case.” The Tribunal enquired whether her siblings (who also live in the house being ‘watched’ by the gang) could provide statements or assist their mother with a statement. The applicant responded that “they cannot help my mum to do something like this” and she does not want to cause inconvenience to her family.
The applicant stated that she does not have a record of communications with her mother that would disclose her mother’s account of the overt incident or her mother’s expressions of feeling harassed or threatened by ongoing ‘monitoring’. The applicant stated that she does not possess any screenshots of messages from her mother and is not in the habit of recording her conversations with her mother. She does know however, that “every time my mom call me, they always cried… every time my mom call me, I can say she's very worried about me and also I can say her life, her living is very much depressed and often there's somebody just… being around the family… often there's someone come to monitor around our family.”
Threats directed against applicant in Australia

Early in her evidence, the applicant stated that (upon returning to Australia in February 2020) she “largely stayed home because [she] was hurt by that relationship [with [Mr C]]”. She initially told the Tribunal that she and [Mr C] had not been in contact since February 2020 because she stopped using her Taiwanese phone when she returned to Australia. She corrected this evidence with her later statement that [Mr C] had sent a threatening message to her Taiwanese phone after she returned to Australia and her sister “happened to see that message on [her] phone.”
Late in the hearing, the applicant further corrected her evidence of [Mr C]’s contact with her by stating there had been repeated messages from him which she did not notice until (in March 2021) she accessed her Taiwanese phone again. The applicant stated that she deliberately did not check the Taiwanese phone between February 2020 and March 2021 ”because I didn't want to keep that thing which hurt me, so I threw it away - my old phone.”
The Tribunal queried the content of [Mr C]’s messages. The applicant’s only recall of the messages was that they said “if I do not appear then [he] will keep monitoring my family until I appear.”
The applicant described the frequency of [Mr C]’s messages to her between February 2020 and March 2021 as “roughly one message every one or two weeks.” The applicant stated that she “has no real evidence [of these messages] because she didn’t want to keep that thing which hurt me, so I threw it away – my old phone.”
The applicant told the Tribunal that she disposed of the Taiwanese phone in or around March 2021 and does not know if [Mr C] has sent any threatening messages to her since then. The applicant confirmed her earlier evidence that she has not had direct contact with [Mr C] since she left Taiwan in February 2020.
The Tribunal asked the applicant to describe the reason/s she feels threatened with future harm by [Mr C] and/or the gang, noting that she has no knowledge of him threatening or harassing her since March 2021.The applicant responded that the gang does not want her to go to the police with what she knows about its operations. She stated that she knows “some secret” about the gang but she did not (and would not) make a report to the police about it because if she did so “I cannot survive in Taiwan, even I cannot stay here in Australia.”
Reasons for producing new evidence
The Tribunal enquired why evidence of threatening messages from [Mr C] was not brought forward earlier – either in the December 2000 or April 2025 documented statements. The applicant indicated the omission was “because I don't want to relive the memory, don't want to touch that old bad memories”.
The Tribunal enquired why evidence of the threatening/harassing behaviour directed at her mother was not brought forward earlier – either in the December 2000 or April 2025 documented statements. The applicant indicated that nobody had witnessed the direct threat and her mother was unable to give evidence about it in a statement because she is illiterate.
Claims and evidence before the delegate

In her protection visa application and accompanying statement (of December 2020), [the applicant] claims that:
·she commenced a relationship with her ex-partner, when she was living in Taiwan, in or around December 2018. She tried to leave the relationship many times and was threatened and abused by her ex-partner
·she was subjected to partner violence and gang-related violence while in Taiwan between September 2018 and September 2019
·as a result of the harm she suffered in Taiwan she left for Australia in September 2019 and returned there (hesitantly) for a short amount of time when her father passed away [in] December 2020
·the gang members are still searching for her and would kill her if she returned to Taiwan because she refuses to join the gang and sell drugs for them
·if she ever returns to Taiwan she will be physically harmed and eventually killed by her ex-partner.
New evidence at hearing
At hearing, the applicant added to her claims about past partner (and gang-related) violence when she told the Tribunal that:
·after her initial departure from Taiwan (in September 2019) she suffered further partner violence between February 2000 and March 2021, when her ex-partner sent her threatening messages
·a member of the gang directly threatened her mother.
At hearing, the applicant added to her claims about her fear of returning to Taiwan when she told the Tribunal that she is in possession of ‘secret’ information about the gang which (she says) exposes her to the risk of harm if she returns to Taiwan as the gang does not want her to report the information to the authorities.

COUNTRY INFORMATION

Country information about violence against women (as a particular social group) in Taiwan provides essential context for understanding and assessing the applicant’s claims. Numerous sources of such information were referred to in the delegate’s decision which was provided by the applicant to the Tribunal.
Since the delegate’s decision, Taiwan’s Domestic Violence Prevention Act 2015 has been amended (in November 2023) to extend protection to persons who are not family members of the perpetrator:
to grant police permission to arrest abusive partners who do not live with the victim, as well as expand the scope of protective orders.
Under the amendment, if a current or former intimate partner harms the physical or mental health of a victim, police would be allowed to arrest the abuser under criminal procedure, even if they do not live together.
Since the current law excludes non-cohabitating partners from criminal proceedings, law enforcement [could not] intervene…[1]
[1] ‘Taipei Times’ 21 November 2023, page 2 quoting Democratic Progressive Party Legislator Kao Chia-yu
Article 3 of Taiwan’s Domestic Violence Prevention Act now applies to conduct directed by a perpetrator to persons with whom they have (or have had) a cohabitation relationship.
Prior to the amendments, the US Department of State reported (in March 2021)[2] that many potential offences were not reported to authorities:
The law [in Taiwan] criminalizes rape of women and men, including spousal rape, and domestic violence, and provides protection for rape survivors. Rape trials are not open to the public unless the victim consents. The law allows experts to assist in questioning and appear in court as witnesses when rape victims are minors or have mental disabilities, and it authorizes the use of one-way mirrors, video conferencing, or other practices to protect victims during questioning and at trial. The law permits a charge of rape even if the victim chooses not to press charges and allows prosecutors to investigate complaints of domestic violence even if the victim has not filed a formal complaint.
The law establishes the punishment for rape as a minimum of five years’ imprisonment, and courts usually sentenced individuals convicted of rape to five to 10 years in prison. Courts typically sentenced individuals convicted in domestic violence cases to less than six months in prison.
Many victims did not report the crime for fear of social stigmatization, and NGOs and academic studies estimated the total number of sexual assaults was seven to 10 times higher than the number reported to police. Some abused women chose not to report incidents to police due to social pressure not to disgrace their families.
The law requires all cities and counties to establish violence prevention and control centers to address domestic and sexual violence, child abuse, and elder abuse.
[2] 2020 Country Reports on Human Rights Practices: Taiwan

CONISDERATION OF CLAIMS AND EVIDENCE
Relationship and partner violence

Having regard to the sources of country information cited above, the Tribunal is satisfied that the current laws regarding partner violence in Taiwan provide protections to family members of the perpetrators and persons who have (or have had) a cohabitation relationship with the perpetrator. Even so, the Tribunal accepts that many (otherwise reportable) offences are not referred to authorities due, in part, to fear of social stigmatization.
The Tribunal notes that the applicant does not assert that she was co-habiting with the alleged ex-partner. As such, the authorities may not be able to address incidences of harm against the applicant (perpetrated by an ex-partner) under the Domestic Violence Prevention Act as documented at page 4 of the delegate’s decision.
As regards the applicant’s claim to have been in a relationship with a person she met (online and in person) in Taiwan, the Tribunal has several concerns with the evidence provided by the applicant and the witness.
In assessing the applicant’s case, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of an applicant’s claims,[3] and nor does the Tribunal require rebutting evidence before it can find that a particular assertion by an applicant has not been made out.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70
[4] Randhawa v MILGEA (1994) 52 FCR 437 per Beaumont J at 451; Selvadurai v MIEA (1994) 34 ALD 347 per Heerey J at 348 and Kopalapillai v MIMA (1998) 86 FCR 547
The witness was unable to provide corroboration in relation to the applicant’s alleged relationship with a person she met (online and in person) in Taiwan. The applicant’s sister stated that she did not have direct knowledge about the applicant’s experiences during periods ([Day 1] September 2018 to [Day 2] September 2019 and [December] 2019 to [February] 2020) when the applicant was in Taiwan. While the witness stated that she had been shown a message on her sister’s phone (some time in 2020) she was not able to confirm the message was from ‘a boyfriend’.
The applicant’s evidence, given at hearing, relating to her alleged relationship with [Mr C] (a person she claims to have met online and in person in Taiwan) was vague and unconvincing. Consistent with her evidence at hearing, I find that the applicant does not know [Mr C]’s second name.
As to the identifying and biographical information provided about the alleged ex-partner, the applicant’s oral and statement evidence is limited and lacking in detail. The applicant did not identify her ex-partner other than stating his name was [Mr C]. The applicant provided no information about [Mr C]’s age, employment, family or living arrangements.
The applicant’s evidence, given at hearing, relating to her breakup with the ex-boyfriend was inconsistent with her December 2020 statement that the relationship ended (in September 2019) when she was able to leave him in Taiwan. At hearing, the applicant indicated that the breakup had occurred in February 2020 when (upon returning to Australia at that time) she “largely stayed home because [she] was hurt by that relationship [with [Mr C]]”.
The applicant’s oral evidence regarding [Mr C]’s threatening messages was that they commenced in February 2020. While the December 2020 statement indicates the relationship ended in September 2019, the applicant gave no evidence that [Mr C] sent threatening messages before February 2020. Having regard to this inconsistency, the Tribunal considers the applicant’s evidence of when the alleged relationship ended is not reliable.
Due to the inconsistency and lack of detail apparent in the applicant’s evidence about [Mr C] and the alleged relationship (and the absence of corroborative evidence from the witness), the Tribunal does not accept the applicant’s claim that she was, at any time, in a relationship with a person she met (online and in person) in Taiwan.
It follows that the Tribunal does not accept the applicant’s claims that:
·   physical and psychological harm was inflicted upon her by a former partner
·   she has been in a relationship with a member of a gang operating in Taiwan or was introduced to gang members by a former partner
·   she became known to a gang operating in Taiwan because her former partner was one of its members
·   she received threatening messages from a former partner while she has been living in Australia.
As the Tribunal does not accept the applicant’s claim to have had a former partner, the Tribunal finds that the applicant does not fear violence from a former partner (as claimed) if she returns to Taiwan.
Gang-related violence
The applicant claims that she was subjected to gang-related violence while she was living in Taiwan between September 2018 and September 2019. In her December 2020 statement the applicant claims that gang members are still searching for her and would kill her if she returned to Taiwan because she refuses to join the gang and sell drugs for them. At hearing, the applicant claimed that she is in possession of ‘secret’ information about the gang which exposes her to the risk of harm if she returns to Taiwan.
The Tribunal has several concerns in relation to [the applicant]’s claims regarding her interactions with the gang.
The applicant claims that she was invited to join the gang by her ex-partner. As the Tribunal has not found (based on the available evidence) that the applicant has ever been in a relationship with a member of a gang operating in Taiwan, the Tribunal does not accept as credible, the applicant’s evidence that she became known to a gang operating in Taiwan because of her relationship with one of its members.
There is no evidence before the Tribunal that the applicant was introduced to the gang by any person other than the alleged ex-partner. Based on the accepted evidence, the Tribunal does not find that the applicant has ever interacted with a gang operating in Taiwan.
Regarding the claims made by the applicant that the gang harmed her in Taiwan, the witness was unable to provide corroboration. The applicant’s sister stated that she did not have direct knowledge about her sister’s experiences in Taiwan. As the Tribunal has not accepted that the applicant was introduced to the gang by an ex-partner (as claimed) and in the absence of corroborative evidence, the Tribunal does not find the applicant’s evidence regarding past harm inflicted upon her by the gang to be reliable.
The applicant claims that the gang continues to threaten her – in an indirect manner. The applicant has no first-hand knowledge of the gang’s ongoing conduct in this regard. She claims to have heard from family members that the gang is searching for her, monitoring their home and that someone made a direct approach to her mother at her home. The applicant’s account of relevant events (and the identity of persons involved) was vague and lacking in any detail. The applicant’s claim that her mother could not have provided a supporting statement was not persuasive in the circumstances as the applicant’s evidence is that her two brothers are angry about their situation. In the absence of first-hand evidence detailing this alleged conduct, the Tribunal does not accept that gang members (or anyone) are harassing the applicant’s family.
Having regard to the assessment of evidence outlined above, the Tribunal finds the applicant has not established that she was harmed by a criminal gang operating in Taiwan or that such a gang is threatening her indirectly (by harassing her family).
The applicant’s evidence in the December 2020 statement, regarding her fear of gang-related violence (and her two-month trip to Taiwan) is inconsistent with the official movement records before the Tribunal. In her December 2020 statement the applicant explained that she was hesitant to return to Taiwan (after escaping the gang and ex-partner) but was effectively compelled to do so because her father was extremely ill and later passed away. Official movement records show that the applicant returned to Taiwan between [December] 2019 and [February] 2020. These dates of travel do not align with:
· the applicant’s December 2020 statement that her father died [in] December 2020
· the evidence given by the witness that the father’s death was in 2021 or 2022.

86.Due to the inconsistent evidence regarding the applicant’s return to Taiwan following the alleged violence, the Tribunal does not accept the applicant’s evidence relating to her Taiwan visit 2019-2020 as reliable. The Tribunal does not accept the applicant’s claim that she felt compelled to make this trip because of her father’s condition. The Tribunal does not accept the applicant’s claim that she feared the gang would harm her during her 2019-2020 visit.
87.Based on the accepted evidence, the Tribunal is satisfied that the applicant chose to travel to Taiwan between December 2019 and February 2020 as she was not, at that time, afraid to do so.
88.Having regard to the assessment of evidence above, the Tribunal finds that the applicant does not fear gang-related violence (as claimed) if she returns to Taiwan.

REASONS AND FINDINGS

The issues in this case are whether there is a real chance that, if the applicant returns to Taiwan, she will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Taiwan, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Does the applicant satisfy the refugee criterion for protection?

To meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s 5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion.
The applicant submits that, as a possible informant on a criminal gang in Taiwan and/or as a woman who has been subjected to partner violence, she is a member of a particular social group that attracts Australia’s protection obligations. The applicant claims that if she returns to her home country, she would be tortured or killed by the gang or an ex-partner in order to prevent her from informing on the gang.
Well Founded Fear
The criterion in s 5J(1)(a) contains a subjective requirement, that the applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the applicant would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
In determining the possibility of persecution, the Tribunal is guided by instances of harm that would be considered to be ‘serious harm’. These would include, for example, a threat to a person’s life or liberty, a significant physical harassment or a significant physical ill-treatment of the person, or circumstances that threaten the person’s capacity to subsist.
Gender-based or partner violence
As explained above, the Tribunal has not (based on its assessment of the evidence) accepted that the applicant has been in a relationship with a person in Taiwan or has been harmed by a former partner. The Tribunal has not accepted that any former partner of the applicant has threatened her with harm if she returns to Taiwan.
The Tribunal has considered the applicant’s partner violence claim and does not find that, based on the accepted evidence, there is a reasonable possibility she will face persecution or serious harm by reason of her gender or any former relationship if she returns to Taiwan.

Having regard to these findings, the Tribunal concludes that the applicant’s fears of gender-based or partner violence if she returns to Taiwan, are not well founded. The Tribunal finds that the applicant does not meet either the subjective requirement [in s 5J(1)(a)] or the objective standard [in s 5J(1)(b)] as regards gender-based or partner violence.
Gang-related violence
For the reasons explained above, the Tribunal has not (based on its assessment of the evidence) accepted the applicant’s claim that, following the alleged gang violence, she returned to Taiwan ‘hesitantly’ and only because her father passed away.
Based on the accepted evidence, the Tribunal is satisfied that the applicant chose to travel to Taiwan between [December] 2019 and [February] 2020 as she was not, at that time, afraid to do so.

100.As explained above, the Tribunal has not accepted that since February 2020, the gang has (directly or indirectly) threatened the applicant with harm if she returns to Taiwan.
101.The Tribunal has considered the applicant’s claims of historical and ongoing gang-related harm and does not find that, based on the accepted evidence, there is a reasonable possibility she will face persecution or serious harm at the hands of gang members if she returns to Taiwan.
102.Having regard to these findings, the Tribunal concludes that the applicant’s fears of gang-related violence if she returns to Taiwan, are not well founded. The Tribunal finds that the applicant does not meet either the subjective requirement [in s 5J(1)(a)] or the objective standard [in s 5J(1)(b)] in this regard.
Conclusion
103.For the reasons given above, and having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that if the applicant returned to Taiwan now, or in the reasonably foreseeable future, she would face a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
104.The Tribunal concludes that the applicant does not have a well-founded fear of persecution as defined in s 5J of the Act and is not a refugee within the meaning of s 5H(1) of the Act. It follows that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act.
105.The Tribunal now turns to consider the alternative protection criterion in s 36(2)(aa).

` Does the applicant satisfy the complementary protection criterion for protection?

106.Having found the applicant does not satisfy the refugee criterion in s 36(2)(a) of the Act, the Tribunal must proceed to consider whether in the alternative, she is able to engage Australia’s protection obligations under the complementary protection criterion in s 36(2)(aa) of the Act because there are substantial grounds for the Tribunal to believe that there is a real risk she would suffer significant harm as a necessary and foreseeable consequence of a removal from Australia to Taiwan.
107.In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).
108.In light of the findings above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer harm at the hands of a former partner or a criminal gang (or at all) if she returns to Taiwan.
109.It follows that the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that she will suffer significant harm.
110.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 will does not satisfy the criterion in s 36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 30 April 2025

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.
…
5HMeaning of refugee

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.
…
5JMeaning of well-founded fear of persecution

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.

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.

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:

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;
conceal his or her true race, ethnicity, nationality or country of origin;
alter his or her political beliefs or conceal his or her true political beliefs;
conceal a physical, psychological or intellectual disability;
enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

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.

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.

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.

5KMembership 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:

the first person has ever experienced; or
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.
5LMembership 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:

the characteristic is an innate or immutable characteristic;
the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
the characteristic distinguishes the group from society; and

(d)the characteristic is not a fear of persecution.
5LAEffective protection measures

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:

the relevant State; or
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.

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.
…

Protection visas – criteria provided for by this Act

…

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:

is mentioned in paragraph (a); and
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:

is mentioned in paragraph (aa); and
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.
…