2215930 (Refugee)
[2025] ARTA 1075
•7 April 2025
2215930 (REFUGEE) [2025] ARTA 1075 (7 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2215930
Tribunal:General Member C Stokes
Date:7 April 2025
Place:Adelaide
Decision:The Tribunal affirms the decision under review.
Statement made on 07 April 2025 at 9:35am
CATCHWORDS
REFUGEE – protection visa – Taiwan – victim of loan shark – criminal gang – attack on home – marriage to an Australian citizen – effective protection measures – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZQRB (2013) 210 FCR 505
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 then Minister for Home Affairs on 18 October 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of the Republic of China (Taiwan), applied for the visa on 21 August 2022. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
On 30 October 2022, the applicant applied to the then Administrative Appeals Tribunal (AAT) for review. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
The applicant appeared before the Tribunal on 20 March 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 in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or the ‘complementary protection’ criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The applicant’s migration history
The applicant first arrived in Australia as the holder of a working holiday visa [in] November 2015. He departed [in] February 2018 and returned as the holder of a visitor visa [in] July 2022. On 21 August 2022, the applicant applied for the protection visa.
Application to the Department
In the application to the Department, the applicant claimed he feared harm in Taiwan at the hands of loan sharks. He claimed to have worked in a [business 1] and borrowed [amount] Taiwanese dollars to buy shares in his boss’ business. He claimed he borrowed the money from someone his boss introduced him to and later discovered he had been deceived by his boss and the loan was usury. He claimed to have been threatened by the loan shark who ordered him to repay the principal and high interest. They smashed his car and home contents and punched him. They also harassed his family. He did not involve the police as they threatened to kill him so he came to Australia.
The applicant also provided the Department with a copy of his Taiwanese passport.
The applicant was not invited to attend an interview with the delegate.
On 18 October 2022, the delegate refused the application for the protection visa on the basis that the delegate was satisfied that effective protection measures, as defined in s5LA of the Act, are available to the applicant in Taiwan and that, as a result, under s5J(2), he does not have a well-founded fear of persecution at the hands of former business investors and associated gangs. Therefore, the delegate found that the applicant is not a refugee as defined in s5H(1) of the Act and does not satisfy the criterion in s36(2)(a) of the Act.
The delegate went on to find that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm as outlined in s36(2B)(b). Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in 36(2)(aa) of the Act.
Application to the Tribunal
The applicant applied to the then AAT on 30 October 2022. He provided a copy of the delegate’s decision and notification letter. He did not provide any additional information, claims, or evidence with his application.
On 24 January 2025, the Tribunal invited the applicant to attend a hearing, scheduled for 20 March 2025. The application did not provide any pre-hearing submissions.
At the hearing the applicant gave evidence about his background and claims to fear harm at the hands of a loan shark. He also gave evidence that he recently married an Australian citizen. The Tribunal encouraged the applicant to seek migration advice about whether he ought to withdraw his application to pursue other visa avenues and allowed him 14 days following the hearing to do that before making a decision on the review application. The applicant did not withdraw or provide any further information or evidence within 14 days.
REASONS AND FINDINGS
Country of reference: Republic of China (Taiwan)
The applicant claims to be a Taiwanese national and provided a copy of his Taiwanese passport as evidence. I accept he is a Taiwanese national and find Taiwan is his receiving country.
Findings of fact
Based on the documentary evidence provided by the applicant to the Department and the Tribunal and his oral evidence to the Tribunal, I find and accept that:
a.the applicant was born in [specified year] in Tapei where he grew up, completed high school and worked in [industry 1]
b.his parents and [specified family members] still live together in the family home in Tapei. He is in regular contact with them and sends them money
c.he travelled to Australia in 2015 on a working holiday visa. He knew Taiwanese friends living here before he arrived and worked in a [specified business]
d.he returned to Taiwan in 2018 and worked in a [business 1] in [a particular role]
e.he came back to Australia in 2022 as he wanted to return
f.he is now married to an Australian citizen and works in [industry 2].
Does the applicant satisfy the refugee criterion for protection?
I found the applicant’s evidence regarding the circumstances in which claimed to have borrowed a large sum of money from a loan shark to be vague and implausible. At the hearing he claimed to have borrowed more than [amount] dollars from someone his boss introduced him to, at a high interest rate, so he could invest in the [business 1]. He did not recall the name of the lender, how much the interest rate was, what the repayments were, nor how much he had repaid and how much is outstanding on the loan. He also claimed there was no written loan agreement and there was no specific repayment amount agreed and he just paid what he could from time to time. He also claimed to have not sought any financial or legal advice about the investment nor the debt. I consider it implausible that someone who had worked in [his particular role], for a short period of time on a relatively low salary, would borrow such a large sum of money without seeking advice or understanding what his monthly repayment obligations were. I do not accept the applicant borrowed such a significant sum of money. However, I am prepared to accept that he was indebted to a lender for some amount and when he did not make sufficient repayments he was harassed.
However, even accepting that he owed money and suffered some verbal and physical harassment in 2022, I am not satisfied there is a real chance that he would face serious harm at the hands of the money lenders now or in the reasonably foreseeable future. According to the applicant’s evidence, the lenders have not communicated with him since he initially arrived in Australia in July 2022 – that is he has not made any further payments and they have not contacted him for more than 2 and a half years. Further, the applicant gave evidence that the money lenders have not approached any of his family to ask about his whereabouts, notwithstanding the claim that the money lenders previously harassed his family. Considering the time that has passed and the absence of any further engagement by the money lenders I am not satisfied they remain interested in the applicant, or would, pursue and harm him in Taiwan. I find there is no real chance that the applicant would face serious harm in Taiwan, now or in the reasonably foreseeable future if he were to return to Taiwan at the hands of the money lenders.
25. In any case, the applicant accepted that if the money lenders continued to harass him in Taiwan then he would be able to access protection from the police. While he claimed to have tried to go to the police before but was stopped by the money lenders and threatened, I find that he would be able to go to police on return to seek their assistance and protection.
As discussed with the applicant at the hearing, lending money at an ‘obviously’ inappropriate interest rate is a crime in Taiwan.[1] Further, monitoring, intrusion upon, threats, intimidation and actual harm in an effort to instil fear are all criminalised.[2] Loan sharks have been targeted in broad crackdowns against criminals.[3] Police operations against loan sharks are reported in the Taiwanese media and hundreds of loan sharks have been arrested in recent years.[4] Further, the country information indicates that the Police are effective and the crime rate is low. Violent crime rates are among the lowest in the world and crime is generally low. A 2021 independent survey measuring public satisfaction with justice and crime prevention policies shows that for the third consecutive year more than 80 percent of the respondents were satisfied with the police in maintaining public safety.[5]
[1] 'Criminal Code of the Republic of China', Government of Taiwan, as amended to 15 January 2020, art. 344
[2] 'Criminal Code of the Republic of China', Government of Taiwan, as amended to 15 January 2020, art. 344-1
[3] 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019
[4] ‘South Taiwan business owner reports loan shark for 'not taking repayment'’, Taiwan News, 24 March 2022; ‘8 gang members arrested for illegal collection of debts in Taipei’, Focus Taiwan, 14 March 2021; 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019,; 'Police tout results of raids on gun, loan operations', Taipei Times, 24 June 2019
[5] ‘Public Satisfaction with the Police is over 80% in 3 Consecutive Years Citizens Support Drug Enforcement, Fraud Prevention
and Various Measures by the Police’, Ministry of Interior (Taiwan), 25 February 2022
Based on the country information, I consider that the effective protection measures are available to the applicant in Taiwan, would be such that he does not have a well-founded fear of persecution pursuant to s 5J(2) of the Act.
For the above reasons, the applicant does not meet the criteria in s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
I have found the applicant does not face a real chance of serious harm in Taiwan. ‘Real chance’ and ‘real risk’ have been found to equate to the same threshold.[6] For the same reasons given above, I find there is not a real risk the applicant will suffer significant harm.
[6] MIAC v SZQRB (2013) 210 FCR 505
For completeness, I also find that based on the country information discussed above, the applicant could obtain protection from the authorities such that there is less than a real risk of him being subject to significant harm in the reasonably foreseeable future.
For the above reasons, the Tribunal is not satisfied that there are substantial grounds for believing that as a consequence of his removal from Australia to Taiwan the applicant would face a real risk of significant harm in the reasonably foreseeable future, because he owes debts to moneylenders in Taiwan.
The applicant does not meet the criterion in s 36(2)(aa) of the Migration Act.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 20 March 2025
Representative of the applicant: N/A
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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