1502987 (Refugee)

[2016] AATA 3687

1502987 (Refugee) [2016] AATA 3687 (14 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502987

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Glen Cranwell

DATE:14 April 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 14 April 2016 at 1:47pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Taiwan, applied for the visa [in] October 2014 and the delegate refused to grant the visa [in] January 2015.

3. The applicant appeared before the Tribunal on 14 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The Tribunal notes that the hearing was conducted by video conference.  Due to technical issues, the location for the video conference at the applicant’s site was changed shortly before the hearing.  The applicant was directed to the new site, and participated in the hearing from that site.

5. At the commencement of the hearing, the Tribunal asked the applicant whether he wished his representative to be contacted by telephone to participate in the hearing, noting that no request had been received from the representative.  The applicant declined the Tribunal’s offer to telephone the representative.

   RELEVANT LAW

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

   Refugee criterion

7. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

17. 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 a protection 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 the applicant 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’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where 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; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

20. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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

21. The Tribunal has before it the Department’s file relating to the applicant.  The Tribunal has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.  This material includes:

    ·application for protection visa;

    ·interview with delegate dated [January] 2015;

    ·copy of applicant’s passport;

    ·[Temporary] visa grant letters;

    ·BBC article titled “Taiwan politicians mix with gangsters at mafia funeral” and untranslated articles.

22. The applicant’s claims are set out in his answers to questions 44-49 of Part C of his protection visa application as follows:

    44. Why did you leave that country?

    I have no relatives in my country since my parents died seven years ago. They left some debt for me to take while I bear my own debt in the name of student loans. Since I did not work in Taiwan, the debts remain intact so far. Under the circumstances I had no other way but to leave the country to liberate myself from all kinds of fear, uncertainty, insecure future, worries & despair. As per the debts, I hope to pay back even a bit at a time while working in Australia as a [occupation] for that is the only way to live on and pay back debts at present.

    45. Have you experienced harm in that country?

    My father owed a lot of money to people while playing gamble so my family had to move on to run away from creditors who kept chasing us up to require recovery of money that they lent. There had been no time to rest for us due to the chasing games by the people usually dispatched by loan sharks. After my father left the earth, whose who had chased up my father over the debts began to chase me up instead of my father and to threaten me to take away my life if the debts were not paid in time.

    46. What do you fear may happen to you if you go back to that country?

    Once I return home, I know that I will be subject to severe hostility and private lynch in revenge for escape from their hands. I may be killed by the hands of Taiwanese mafia called Sanhaphoe (Triad) for the creditors are front liners of the gangsters that - control the night world of Taiwan.

    47. Who do you think may harm/mistreat you if you go back?

    [Triad] will beat and stabbed to death for I know that they have planned to chase me up for so long since I left that country. In Taiwan the bosses are very close to the government's top officials and they do not hesitate to be seen on TV or other media for they know that the government will cover them up if the police or public prosecutors charge the. (sic) Therefore they have nothing to block them from making crimes and they commit crimes without hesitation.

    48. Why do you think this will happen if you go back?

    This question is almost the same as question 47. If I should make return to home back in Taiwan, the only thing that waits for me sorrow, tragedy, injury and death.

    49. Do you think the authorities of that country can and will protect you if you go back?

    As was mentioned earlier, the gangsters have close relationship with the core officials of the government so it is hard to expect any significant counter-measure from the authority to be protected by the authority.

23. At the hearing, the applicant told the Tribunal that his father died in 2006.

24. The applicant confirmed that he arrived in Australia [in] October 2012 as the holder of a [temporary] visa.  He returned to Taiwan between [August] 2013 and [September] 2013.  He applied for a protection visa [in] October 2014, shortly before his second [temporary] visa was due to expire [in] October 2014.

25. The Tribunal asked the applicant what he fears if he returns to Taiwan.  The applicant stated that his father owed a lot of money to gang people in Taiwan.  They are asking him to repay the money.

26. The Tribunal asked the applicant when the gang people started demanding that the applicant repay the money.  The applicant stated that they started asking as soon as his father died.

27. The Tribunal asked whether the applicant was harmed.  The applicant stated that the repayment system was in instalments.  If he missed an instalment, he would be threatened.  If after a few days he still had not repaid the money, he would be beaten.

28. The Tribunal asked the applicant when he was first beaten.  The applicant stated that he was first beaten in 2008.

29. The Tribunal asked the applicant whether he had contacted the police.  The applicant stated that he had contacted the police in 2008 when he was first assaulted.  The police officer said he would take care of it, but the police did not do anything.

30. The Tribunal noted that in his protection visa application, the applicant had stated that he visited [Country 1] in April 2011.  [Country 1] is a party to the Refugees Convention.  The Tribunal asked the applicant why he returned to Taiwan rather than seeking protection in [Country 1] when he had the opportunity.  The applicant stated that he did not know about protection visas at that time.  He went to [Country 1] for a visit.

31. The Tribunal noted that in his protection visa application, the applicant had stated that he visited [Country 2] in June 2012.  [Country 2] is a party to the Refugees Convention.  The Tribunal asked the applicant why he returned to Taiwan rather than seeking protection in [Country 2] when he had the opportunity.  The applicant stated that he did not know about protection visas at that time.  The travel was arranged by the company he worked for.

32. The Tribunal noted that the applicant had returned to Taiwan from Australia in August/September 2013.  The Tribunal asked why he returned to Taiwan rather than seeking protection in Australia.  The applicant stated that he did not know about protection visas at that time.  He also thought the gangs would not find him as he had been away for a while.  However, they found him and assaulted him.  When he returned to Australia, he met a friend who told him he was able to apply for protection.

33. The Tribunal asked the applicant why he delayed seeking protection for over a year after he returned to Australia.  The applicant stated that just before his visa was due to expire, he met a friend who told him about protection visas.  He went to a migration agent who told him more about the procedure.

34. The Tribunal put to the applicant that he had returned to Taiwan on 3 occasions after he had the opportunity of seeking protection, and then delayed seeking protection for over a year after returning to Australia.  This suggested to the Tribunal that he did not hold the fears that he claimed, and applied for a protection visa to extend his stay in Australia before his [temporary visa] expired.  The applicant stated that he learned about protection visas half a year before his visa expired.  He started preparing the protection visa application.  His migration agent asked him for supporting documentation, and it took some time for him to prepare the documentation.  His migration agent made the decision as to when the application was lodged.

35. The Tribunal put to the applicant that he initially told the Tribunal his friend told him about protection visas “just” before his [temporary] visa was due to expire, and now he stated that he was told “half a year” before.  The applicant stated that he meant to say that he told his friends in Australia about his situation.  He met someone at work who knew about the visa, and introduced him to his migration agent.  He then had to prepare supporting documentation.

36. The Tribunal put to the applicant that he provided almost no supporting documentation with his protection visa application, and it might not accept it took him half a year to prepare this lack of documentation.  The applicant stated that there was a change of plan.  His migration agent initially told him to obtain supporting documents.  He tried to do so, but his attempts all ended in failure.  Then they changed plans to lodge the protection visa application without supporting documentation.

37. The Tribunal put to the applicant that if he did genuinely hold the fear that he claims, it would have expected him to make inquiries as to how he could remain in [Country 1], [Country 2] or Australia considerably in advance of when he did.  It noted that he was sophisticated enough to lodge 2 [temporary] visa applications.  The applicant stated that he did not know anything about protection visas.  The [temporary] visa is very popular in Taiwan, and the government had made it very easy to obtain.

38. The Tribunal asked the applicant whether there was anything else he wished to raise.  The applicant stated there was not.

    Assessment of claims

39. The applicant claims to be a Taiwanese national.  In the absence of evidence to the contrary, the Tribunal finds that Taiwan is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

40. The Tribunal finds that the applicant visited [Country 1] in April 2011, and that [Country 1] is a party to the Refugees Convention.

41. The Tribunal finds that the applicant visited [Country 2] in June 2012, and that [Country 2] is a party to the Refugees Convention.

42. The Tribunal finds that the applicant first arrived in Australia [in] October 2012 as the holder of a [temporary] visa.

43. The Tribunal finds that the applicant returned to Taiwan between [date] August 2013 and [date] September 2013.

44. The Tribunal finds that the applicant lodged his protection visa application [in] October 2014, 6 days before his second [temporary] visa was due to expire.

45. The applicant claimed that his father died in 2006, and that gangs owed money by his father started demanding repayment of loans by the applicant upon his father’s death.  The applicant claimed that he was beaten on a number of occasions, commencing in 2008.  The Tribunal does not accept these claims for the following reasons:

    ·If the applicant feared harm from gangs in Taiwan, the Tribunal would have expected the applicant to have made inquiries about the possibility of remaining in [Country 1] when he visited in April 2011, even if he was not initially aware of his ability to seek protection.

    ·If the applicant feared harm from gangs in Taiwan, the Tribunal would have expected the applicant to have made inquiries about the possibility of remaining in [Country 2] when he visited in June 2012, even if he was not initially aware of his ability to seek protection.

    ·If the applicant feared harm from gangs in Taiwan, the Tribunal would not have expected him to return to Taiwan from Australia in August/September 2013.  The applicant was not required to leave Australia to lodge his second [temporary] visa application.  The Tribunal did not find the applicant’s explanation that he did not think the gangs would find him to be plausible.  Presumably if he thought the gangs would be unable to find him if he had been away for a while, the applicant would have gone away for a while earlier.  In any event, the Tribunal notes that this is not an explanation previously provided by the applicant.  As set out in the delegate’s decision (a copy of which was provided to the Tribunal), the applicant’s previous explanation was that he had returned to Taiwan to visit his sick grandfather and arrange some affairs.  The applicant did not raise his previous explanation at the hearing.

    ·If the applicant feared harm from gangs in Taiwan, the Tribunal would not have expected him to delay by over a year applying for a protection visa after he returned from Taiwan in September 2013.  The Tribunal did not find applicant’s the explanation of his delay to be plausible.  He initially stated that he only found out that he could apply for a protection visa “just” before his [temporary] visa expired.  He later amended this to say that found out “half a year” before his visa expired.  When the inconsistency was put to him, the applicant subsequently attempted to explain this discrepancy by stating that he had to prepare supporting documents.  When the Tribunal put to him that almost no supporting documents were provided with his protection visa application, the applicant further amended his account to state that he attempted to obtain supporting documentation but was unable to do so.

1. For the reasons set out above, the Tribunal finds that the applicant’s evidence was fabricated in its entirety.  The Tribunal considers that the timing of the protection visa application, and the failure to seek protection earlier, indicates that the application was only made after the applicant exhausted his other options to stay in Australia.

2. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

3. 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).

4. 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) for a protection visa.

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Glen Cranwell
   Member