1504130 (Refugee)

1504130 (Refugee) [2016] AATA 4738 (14 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1504130
COUNTRY OF REFERENCE:                  Taiwan
MEMBER:Robert Titterton
DATE:14 November 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 14 November 2016 at 3:44pm

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

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).
The applicant, who claims to be a citizen of Taiwan, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] February 2015.
The applicant appeared before the Tribunal on 9 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal notes that in the reasons that follow, all references to money, for instance $[amount], are references to Taiwanese New Dollars.

CONSIDERATION OF CLAIMS AND EVIDENCE

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.
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).
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.
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’).
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.
The issue in this case is whether the applicant has a well-founded fear of serious harm amounting to persecution for reasons of a Convention ground, or whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia she will suffer significant harm.

APPLICANT’S EVIDENCE

[In] June 2014, the applicant filed her application for a protection visa. The application states that the applicant was born on [date]. She is therefore [age] years of age. She speak, reads and writes Mandarin. She provided a photocopy of a passport bearing her name and date of birth issued by the People’s Republic of China [in] 2013. She was educated to university level in [Taiwan]. The application states her claims as follows:
43 Why did you leave that country?
I fear returning to Taiwan as my [Relative 1]’s gambling has resulted in him wearing a large debt to criminal gang. As my [Relative 1] has gone into hiding the gangs are threatening me for the repayment of the debt.
Prior to travelling to Australia in October 2011 I was locked in my home by gang members for two days and not permitted to leave. During this time I was shown photos of people who had been seriously beaten. I was threatened that this would happen to me. Was also threatened calling the police was useless, as they would find me where ever I lived.
I also fear returning to Taiwan as I am a Lesbian and Lesbians are treated with serious discrimination particularly in finding employment and in the workplace.
I fear that if I am returned to Taiwan I will suffer serious harm as a Lesbian and by the gang who was threatening me to repay my [Relative 1]’s gambling debt. Gambling is illegal in Taiwan and the gangs that run this are above the law.
I fear that if I am returned to Taiwan I will suffer significant harm including torture, arbitrary death, cruel, inhuman or degrading treatment or punishment.
The same identical answer appears to each of the following questions in the applicant’s application:
·question 44     have you experience harm in that country
·question 45     what you fear may happen to you if you go back to that country
·question 46     who do you think may harm/mistreat you if you go back?
·question 47     why do you think this will happen if you go back?
·question 48     do you think the authorities of the country can and will protect you if you go back?
The applicant’s claims were amplified in a three page section of supplementary answers to the questions stated above. In relation to her [Relative 1]’s family debts she states, in summary:
(a)the severe debt problem of her [Relative 1] “threatens my life and property with tremendous economic and psychological pressure”;
(b)in 2003 “my [Relative 1] contacted me and asked for my help to settle his debts. He expressed that I had a job so that I could borrow loans from banks. Because the bank’s interest rate is rather low, he would be able to pay off some day. The creditor showed me the promissory note with my [Relative 1]’s signature and threatened if I didn’t settle the debts and he would get me at my university. Result: Because I was afraid of his threats and I would graduate soon then, I found no other way but to borrow money from the banks of my credit cards so as to pay off my [Relative 1]’s debts. Later on, I shouldered a great amount of credit card debts, so need to bank loans to repay credit card debt”. She also states that in 2003 she “replaced” her [Relative 1] to repay debts of $[amount];
(c)in the period 2004 to 2009, she says that she was “followed and supervised by loan sharks. They moved and destroyed my car.” She states that several times they showed up in her office or on her way to the office. She states that “they kept on asking until my company called me and they finally let me go”. She states that in this period she gave nearly $[amount], including nearly $[amount] severance pay to these loan sharks;
(d)In April 2011, the loan sharks locked her inside her apartment for two days;
(e)in September 2011, they found her in [City 1], and made her pay $[amount].
The Tribunal also had before it a copy of a document which had been provided to the Department [in] February 2015, following the applicant’s interview [in] February 2015. This document is in the form of a chronology of events providing a timeline, an event that occurred, details of the event, results of the event, and other additional information. Thus, in relation to the incident of April 2011, the document states:
The debt collectors came to my door, and I did not go out. Unexpectedly I was locked up from outside by them for two days. They damaged the seat of my motorbike and threw food and drink into the boot and smashed the motorbike mirror. They even said that since I didn’t want to go out, then they would make it impossible for me to go out. They also burned rubbish outside the apartment I was renting and left a lot of victims’ photos who had been beaten by them or even photos of pets being beaten to death by them. They threaten to me to demand repayment of the debt, otherwise I would end up exactly like them.
In relation to the incident of September 2011, the document states:
After returning to Taiwan, I dared not go back to my home city but went to a place in [another part] of Taiwan. I stayed in [location] for two days and then went to [City 1], where I stayed for more than three weeks. When I was about to look for a job and rent an apartment, I was called by them when going out shopping. They snatched away my bag straightaway and took my belongings. They also took away the cash on me and hit me. [They] forced me to go to an ATM to withdraw money for them and warned me not to run away, otherwise I should find ways not to be found by them. If I didn’t repay them the money, the consequences would be worse and worse.
The Tribunal also had before it a letter of [a] Community Legal Service Inc dated [February] 2015 to the Department. This document had been prepared for the interview with the Department on that day. Relevantly, the letter states:
We note that [the] applicant identifies the grounds for persecution as her being “homosexual”, which we fear may unfairly limit the actual ambit of her claims.
Speaking with her, she has strongly identified a number of alternate claims which are alluded to in her statement but perhaps not explicit[ly] enough to generate detailed discussion at her interview this afternoon.
In the interests of ensuring the Department fully understands her claims we note that the additional issues appear to fall within her claim and were articulated by her as grounds for protection:
1.her persecution since high school for her sexual preference which she describes as “homosexual”.
2.Her persecution since high school for gender identity issues including:
a.     adopting non-specific gender characteristics;
b.     adopting transgender characteristics, i.e. characteristics of a male person;
c.     refusing to dress in traditional female clothing, during schooling or employment;
d.     refusing to act in traditional gendered manner and role during employment.
The Tribunal had this portion of the letter interpreted to the applicant during the course of the hearing. The Tribunal enquired whether or not this accurately stated her claims in relation to homosexuality and transgenderedness. The applicant said that she did not know what transgender meant, but the characteristics set out in the letter described her. In the circumstances, the Tribunal indicated it would also consider these matters in relation to her claims for protection.
The last part of this document sets out a chronology of the applicant’s travels in the period [August] 2004 to [October] 2011.
Finally, the Tribunal notes that it also had before it the decision of the delegate of [February] 2015, a copy of which had been provided to the Tribunal by the applicant. In summary, in relation to the claims of her [Relative 1]’s debts and the loan sharks, the delegate:
(a)was satisfied that the applicant was a citizen of the Republic of China (Taiwan);
(b)was not satisfied that her claims that she feared serious harm from moneylenders in Taiwan were credible. There were a number of reasons for this:
(i)the delegate was not satisfied that the applicant’s migration history was commensurate with that of a person who feared harm in the country of origin;
(ii)the applicant’s delay in seeking protection;
(iii)the delegate’s serious concerns regarding the plausibility of the applicant’s claims that she was twice located in Taiwan;
The delegate found that the applicant had manufactured the entirety of these claims for the purposes of improving her claims for protection.
In relation to the applicant’s claims in relation to her sexual orientation and gender identity, the delegate:
(a) accepted her claims of being homosexual as credible;
(b)accepted that she did not dress in traditional female clothing and did not act in a traditional gendered manner;
(c)did not accept she was fired from her Taiwanese workplace in 2008 because of her dress and sexuality;
(d)did not accept her claims that she feared being unable to gain employment in Taiwan for reasons relating to her sexuality and dress; did not accept that she feared unspecified serious harm or harm including claims of torture,arbitrary death, cruel, inhuman or degrading treatment or punishment because of her sexuality or gender identity.

Evidence at the hearing

The applicant gave evidence at a hearing for some three hours, during which time the Tribunal had the opportunity of discussing her claims with her.
At the commencement of the hearing, the applicant indicated that she had some articles that she wished to provide to the Tribunal. This presented an immediate difficulty in a physical sense as the hearing was being conducted by video link, with the applicant being in [one location] and the Tribunal sitting in Sydney. She explained that the articles related to the activities of loan sharks in Taiwan. She also had information about her studies in Australia. However, the articles about the loan sharks were in Mandarin. The Tribunal indicated that that if she wished to rely on those articles she would need to provide certified translations to the Tribunal. The Tribunal further indicated it would allow her time in which to do so. However, no further country information was received post-hearing.
The applicant indicated that she did have one English-language article, titled Police Suspected of Abetting Loan Shark, which was published in the China Post on 26 May 2015. The Tribunal indicated that it was able to locate an extract from this article on the Internet,[1] which stated in part:
Taipei District Prosecutors Office led by Prosecutor Chu Ren-jie, summoned four police officers yesterday for allegedly shielding and abetting a loan shark and reportedly forcing borrowers to transfer house and land deeds to the alleged loan shark, according to the Bureau of Investigation.
Chu yesterday dispatched a team of agents from the BOI's Taoyuan branch on a large-scale search at 11 locations, including Haishan Precinct and Luzhou Precinct of the New Taipei City Police Department, as well as the NTPD Criminal Investigation Division, taking 17 suspects into custody, including police officers, for further investigations.
According to prosecutors, the BOI was tipped off by informants last year, accusing NTPD police officers of working with a loan shark surnamed Su, in Luzhou District. Undercover investigations were then conducted, prosecutors added.
According to the NTPD, Su operated near to Luzhou Precinct in 2009, allegedly charging exorbitant interest rates, and when borrowers could not pay back the loans in time, they were forced into transferring their house and land deeds to him.
The four senior police officers summoned yesterday are suspected of having abetted Su in the illegal business, going after the borrowers when payments were not returned on schedule, and forcing them into transferring their deeds, prosecutors said.
[1] >
The applicant was sworn, and gave evidence save for what appears below, broadly consistent with the statements of claims, the chronology referred to above in the supplementary answers. At the commencement of the hearing the Applicant confirmed that the contents of her application, her chronology document, and supplementary answers were true and correct.
She confirmed that she was born in [date], in Taiwan, and was [age] years old. She has one [sibling] with whom she has no contact, the parents were divorced when she was [age], after which time she lived with her grandparents. She has no relationship or contact with [one parent]. She does not know whether [this parent] is alive.
When she was about [age], by which time she knew she was homosexual, which her grandparents could not accept, she went to live with [Relative 1]. She completed high school and then undertook tertiary studies at [a university]. She graduated in July [year] with a [degree].
The applicant lived with her [Relative 1] from 1994 to about 1998. She did not understand him to have a job. She told the Tribunal he had been left a legacy and did not need to work. He spent his time drinking and gambling.
In 1998, her [Relative 1] requested that she move, and she went to live in an [Relative 2]’s house. This was about the same time the debt collectors started coming to her [Relative 1]’s house. The applicant was upset at having to move, her feeling being that her [Relative 1] did not wish to protect her. She remained at the [Relative 2]’s house for about two years before moving out in 2000. She only had occasional contact with her [Relative 1] during this period.
When she moved out of the [Relative 2]’s apartment, she lived with a classmate in an apartment. She worked in the day and attended University at night. The applicant said during this period, that is until she finished university, she saw a bit more of her [Relative 1], and they would have a meal together from time to time. She did not know whether he was working, and had never known him to work.
One day in 2003, her [Relative 1] asked her if he could borrow money from her. She said that she borrowed this from her credit card, and gave the [Relative 1] $[amount], which she described as a large amount of money.
The applicant said that the first time she gave money to the debt collectors was when she started to work, that is, in about 2003 or 2004. She thinks that the first time she gave them about $[amount]. She continued to give the money over the period 2004 to May 2008, culminating in her giving the debt collectors the $[amount] redundancy payment she received at that time. She told the Tribunal that in the period from 2003, when she gave the initial $[amount], to May 2008, when she gave the redundancy payment of $[amount], she had paid about $[amount] million to the debt collectors. On occasion she went to the police, who were not able to help her as she did not who know who the debt collectors were.
She told the Tribunal, and confirmed when asked again, that after she was made redundant she did not give the debt collectors any more money before she left Taiwan for Australia in February 2009. She confirmed that they never asked again for money after she paid the $[amount].
The applicant told the Tribunal that when she returned to Taiwan in the period [February] 2010 to [March] 2010, she was not contacted by the debt collectors.
The applicant told the Tribunal that when she returned to Taiwan in the period for [March] 2010 to [April] 2010, she was not contacted by the debt collectors.

However, the applicant told the Tribunal that she was so contacted when she returned to Taiwan in April 2011. She returned at this time, and lived with a girlfriend who was living in Taipei City. That woman shared her flat with two others. The applicant said that, having been there for about one week, the debt collectors knocked on the door. They rang from downstairs and the applicant could see from the second floor balcony that there were three people, one of whom she recognised, and two that she did not. She did not let them in, but somehow they gained entrance through the front door of the apartments. They then knocked on the door, saying that they had come for her [Relative 1]’s debts. She said that she would not and could not pay those debts and that she had already paid money. As the applicant would not cooperate, the debt collectors locked her in the apartment, where she remained overnight.
The next occasion the applicant returned to Taiwan was in September 2011. On this occasion, because the applicant feared being found again, she went to [City 1]. The Tribunal noted that this was a large Taiwanese city, some 160 km away, with a population of approximately [number] million people. Having been living in a hotel for some two weeks she was approached in the CBD by different people and she did not recognise. They said that she was good at hiding, that her [Relative 1] owed the money several million dollars in fact. She said that they took a bag from her which happened to have $[amount] in cash in it. The following day they forced her to go to the bank and withdraw a further $[amount]. The applicant did not tell the police about this incident; she did not think that there was any point in doing so.
The Tribunal also discussed with the applicant her claims of homosexuality and transgenderedness. The applicant confirmed that she still identified as a Lesbian and transgendered person. She stated that she presently had a female partner, who is Taiwanese, and who had recently returned to Taiwan.
The Tribunal explained to the applicant that persecution for the purposes of the Refugees Convention involved the suffering of serious harm, serious harm including a threat to the person's life or liberty; significant physical harassment of the person; significant physical ill-treatment of the person; significant economic hardship that threatens the person's capacity to subsist; denial of access to basic services, where the denial threatens the person's capacity to subsist; denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
The Tribunal asked her if she had ever suffered a serious harm in any of those sensors as a result of being homosexual, or as a result of being transgendered. The applicant said that she would find it difficult to find employment in Taiwan, that it was “relatively hard” for her to find employment.

CONSIDERATION AND FINDINGS

Is the applicant a citizen of Taiwan?

Having sighted a photocopy of a passport issued by the Taiwan in the name of the applicant, the Tribunal is satisfied that the applicant is a citizen of Taiwan and that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purpose of her complementary protection claims, is Taiwan.

Does the applicant have the right to enter and reside in any other country?

There is nothing in the evidence to suggest that the applicant has a right to enter or reside in any other country other than Taiwan. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act as it has found that the applicant is a citizen of Taiwan.

Does the applicant has a well-founded fear of being persecuted in Taiwan for one or more of the five reasons set out in the Refugees’ Convention?

Various decisions of the Federal Court of Australia[2] have held that when determining whether a particular applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims. However, the Tribunal is not required to accept uncritically each and every assertion made by an applicant. Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality.
[2] See for instance Randhawa v MILGEA (1994) 52 FCR 437; Selvadurai v MIEA & Anor (1994) 34 ALD 347 and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal does not accept the applicant to be a witness of credit concerning the claims of her [Relative 1]’s gambling debts, including but not limited to being located by gangs on a number of occasions, demands for money being made and being locked up in an apartment on one occasion. The Tribunal has come to this conclusion because of the inconsistencies between her evidence at the hearing and with the contents of the documents which she had provided to the Tribunal in support of those claims, together with her unpersuasive explanations for those inconsistencies. In addition, the applicant gave other evidence which the Tribunal does not accept as reasonable to believe as true. Some examples are set out below.
First, the applicant told the Tribunal that she gave her [Relative 1] $[amount], having borrowed the money on her credit card. However, in her chronology document, the applicant said that she paid the $[amount] to the debt collectors. The Tribunal asked her to explain this discrepancy. The applicant’s response was that effectively it was the same thing, that is, by giving the money to her [Relative 1] was the same as giving the money to the debt collectors. The Tribunal did not accept this as a satisfactory response.
Secondly, the applicant said that the first time she gave money to the debt collectors was when she started to work, that is, in about 2003 or 2004. She thinks that the first time she gave them about $[amount]. She continued to give them money over the period 2004 to May 2008, culminating giving the debt collectors the $[amount] redundancy payment she received from her employers. She told the Tribunal that in the period from 2003, when she gave the initial $[amount], to May 2008, when she gave the redundancy payment of $[amount], she had paid about $[amount] million to the debt collectors. On occasion she went to the police, who were not able to help her as she did not who know who the debt collectors were. She told the Tribunal, and confirmed when asked again, that after she was made redundant she did not give the debt collectors any more money before she left Taiwan for Australia in February 2009. She confirmed that they never asked again for money after she paid the $[amount]. However, the applicant’s chronology referred to above states that in the period July 2008 to early 2009, she paid these people about $[amount]. The Tribunal asked if she was able to explain this discrepancy. The applicant had no response at all to the Tribunal’s enquiry, save for saying that before she left for Australia the debt collectors approached her again, but she did not give them any money.
Thirdly, the applicant told the Tribunal that she was also contacted by gang members when she returned to Taiwan in April 2011. Her account of that episode is summarised above, including being locked in the flat for two days. Her description of this event, including being locked in from the outside, with her flatmates (who were not mentioned in her statement), and having identified the men down in the street from her balcony, seemed far-fetched and was unpersuasive. Her explanation that she was contacted shortly after she arrived, in circumstances where she had maintained no contact with members of the family, including in particular with her [Relative 1] and she had not seen since 2003 and she herself had been out of the country since early 2009, was not believable. The applicant said she did not know how they found her but maybe it was from her medical cards, or other forms she completed when she returned to Taiwan.
Fourthly, the next occasion the applicant returned to Taiwan was in September 2011. She gave evidence that after living in [City 1] for two weeks she was located by gang members when out walking on the street. The Tribunal noted that this was a large Taiwanese city, some 160 km away, with a population of approximately [number] million people. Having been living in a hotel for some two weeks, she was approached in the CBD. They said that she was good at hiding, that her [Relative 1] owed the money several million dollars in fact. She said that they took a bag from her which happened to have $[amount] in cash in it. The following day they forced her to go to the bank and withdraw a further $[amount]. The applicant did not tell the police about this incident she did not think that there was any point in doing so.
The Tribunal also had difficulties with this claim, principally because in the applicant’s chronology document she states that all these events occurred together. She does not state in that document that she had $[amount] in cash on her, although she does say that she did have cash on her at the time, but the document suggests that coincident with taking the money and hitting her, they forced her to go to an ATM to withdraw the money for her. This was not what she told the Tribunal. The Tribunal asked if she was able to explain this discrepancy. The applicant had no answer at all to the Tribunal’s question.
In the circumstances, and giving the applicant the benefit of the doubt where it can, the Tribunal makes the following relevant findings. The Tribunal accepts and finds that the applicant is a Taiwanese woman age [age]. The Tribunal finds that the applicant came to Australia on a student visa in 2011.
The Tribunal does not accept her claims relating to her [Relative 1]’s gambling debts, or any of the associated detail, such as the demands for money, the payment of the debts, being located on two occasions by the debt collectors in different cities or being locked inside her apartment.
Given these findings, the Tribunal does not accept that one or more of the five Convention reasons, including membership of a particular social groups, will be the essential and significant reason for the applicant being harmed if she returns to Taiwan.

Homosexuality - Transgenderedness

The Tribunal now turns to consideration of the applicant’s claims of persecution if she returns to Taiwan on the grounds of her homosexuality and/or transgenderedness.
The Tribunal does accept and finds that the applicant is a lesbian, identifies as a transgendered person; does not dress in traditional female clothing and does not act in a traditional gendered manner.
The Tribunal does not accept that the applicant did not accept was made redundant from her Taiwanese workplace in 2008 because of her dress, her sexuality or her transgenderedness.
The applicant claimed that she would find it difficult to find employment because of her sexuality and/or transgenderedness. The Tribunal rejects these claims. First of all, the applicant was in fact employed in Taiwan in the period from about 2000, possibly earlier until she was made redundant in 2008. Her chronology states that the company reduced the number of employees and laid off staff due to “poor operation”. She does not say that she was made redundant because of her sexuality and/or transgenderedness, at a time when, accordingly to his lawyers submissions, she had adopted non-specific gender characteristics, transgender characteristics (that is characteristics of a male person), refused to wear traditional female clothing or act in a traditional gendered manner since high school.
Nor does the Tribunal find that, following a slight car accident in May 2002, the applicant suffered discriminating or unjust conduct from a policeman who thought the applicant was a homosexual or “tom boy”.
The applicant has provided no country information in support of her claims of harm on the basis of her sexuality or transgenderedness. The Tribunal rejects her claims that “gay rights are ignored in Taiwan” or that there is discrimination on this basis. A simple internet search reveals the following information(footnotes omitted):[3]
[3] gay, bisexual, transgender (LGBT) rights in the Republic of China have been regarded as some of the most progressive in East Asia and Asia in general. Both male and female same-sex sexual activity are legal, however, same-sex couples and households headed by same-sex couples are not eligible for the legal protections available to opposite-sex couples.
The executive branch of the Government of the Republic of China (Executive Yuan) proposed the legalization of same-sex marriage in 2003, however, the bill received mass opposition at that time and was not voted on. Discrimination on the basis of sexual orientation in education and employment have been banned statewide since 2003 and 2007, respectively.
The Taiwan Pride in 2015 was attended by nearly 80,000 citizens, making it the largest LGBT pride in Asia, which has led many to refer to Taiwan as one of the most liberal countries in Asia as well.
Legality of same-sex sexual activity
Adult, private, non-commercial and consensual same-sex sexual activity is legal in the Republic of China. Same-sex sexual activity has never been stated as a crime in Taiwan, unlike many Western countries.
Constitutional rights
The Constitution of the Republic of China does not expressly mention sexual orientation or gender identity.
The Article 7 of the Constitution mention that All citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law.
The Article 22 of the Constitution mention that All other freedoms and rights of the people that are not detrimental to social order or public welfare shall be guaranteed under the Constitution.
Recognition of same-sex relationships
At the end of October 2003, the Executive Yuan proposed legislation granting marriages and the right to adopt to same-sex couples under the Human Rights Basic Law; however it faced opposition among cabinet members (from Democratic Progressive Party) and legislators (controlled by Kuomintang-led Pan-blue coalition) and has been stalled since, and thus not voted on. Currently Taiwan does not have any form of same-sex unions.
In 2011, aiming to create awareness about same-sex marriage, about 80 lesbian couples held Taiwan's biggest same-sex wedding party, attracting about 1,000 friends, relatives and curious onlookers. In 2012, Taiwan's first same-sex Buddhist wedding was held for Fish Huang and her partner You Ya-ting, with Buddhist master Shih Chao-hui presiding over the ritual. In 2012, Chen Ching-hsueh and Kao Chih-Wei, the second Taiwanese same-sex couple to publicly get married, dropped the prolonged fight to have their marriage legally recognized. Lifelong activist Qi Jia-wei picked up Chen and Kao's fight to have their marriage recognized, presenting his case in the Taipei High Administrative Court for the first time in October. He cited unnamed intelligence sources to accuse Washington, Beijing and the Vatican of standing in the way.
On 22 December 2014, a proposed amendment to the Civil Code which would legalize same-sex marriage was due to go under review by the Judiciary Committee of Legislative Yuan. If the amendment passes the committee stage it will then be voted on at the plenary session of the Legislative Yuan in 2015. The amendment, which includes the marriage equality amendment, would insert neutral terms into the Civil Code replacing ones that imply heterosexual marriage, effectively legalizing same-sex marriage. It would also allow same-sex couples to adopt children. Yu Mei-nu of the Democratic Progressive Party (DPP), has expressed support for the amendment as have more than 20 other DPP lawmakers as well as two from the Taiwan Solidarity Union and one each from the Kuomintang and the People First Party. The Republic of China (Taiwan) would become the first country in Asia to legalize same-sex marriage if the Civil Code is amended. The bill failed in January 2016 as the Eighth Legislative Yuan ended.
In July 2016, some Taiwanese legislators announced that they would introduce a same-sex marriage bill in Parliament by the end of 2016. Additionally, Taiwanese President Tsai Ing-wen announced her support of same-sex marriage in November 2015.
Registration of same-sex couples
In May 2015, the special municipality of Kaohsiung announced a plan to allow same-sex couples to mark their partners in civil documents for reference purposes, although it would not be applicable to the healthcare sector; Taiwan LGBT Rights Advocacy, an NGO, criticized the plan as merely a measure to "make fun of" the community without having any substantive effect.
On 17 June 2015, the special municipality of Taipei became the second jurisdiction in Taiwan to implement a relationship register scheme for couples.[17] Taichung followed suit in October 2015. Tainan and New Taipei opened registration for same-sex couples on 1 February 2016. On 1 March, the provincial city of Chiayi became the sixth jurisdiction in Taiwan to implement a relationship register.[21] On 14 March, Taoyuan became the last special municipality of Taiwan to recognize same-sex couples. Both Changhua County and Hsinchu County implemented a relationship register on 1 April. On 20 May, Yilan County began allowing same-sex couples to register as partners.
Discrimination protections
In 2007, the Legislative Yuan, passed legislation banning discrimination based on sexual orientation at work.[26] Discrimination against sexual orientation in education has been banned since 2003 through the Gender Equity Education Act. In March 2010, the Ministry of Education of the Republic of China (Taiwan) announced that, starting from 2011, school textbooks would include topics on LGBT human rights and non-discrimination. According to the Ministry, the reform seeks to "root out discrimination", since "students should be able to grow up happily in an environment of tolerance and respect".
Gender identity/expression
In 2002, transgender activist Tsai Ya-Ting unsuccessfully petitioned the Taiwanese President's office to allow her to use a photo that represented her actual appearance on her identification card.
In 2008, the Ministry of the Interior stipulated in an executive order that transgender and intersex people must undergo sex reassignment surgery in order to change their legal gender on personal document.
In August 2013, the Taiwan Government gave the nod to the country's first public same-sex transgender marriage, after initially questioning the couple's gender.
Since January 2015, transgender persons in Taiwan no longer have to undergo surgery to change their legal gender.
Military service
Lesbian, gay and bisexual people have been able to serve openly in the military since 2002.
In related articles, the Tribunal notes that GayStar News reports that there is a strong argument that Taiwan is the best place in Asia to be gay,[4] and that:
A few weeks ago over 50,000 people marched for LGBT rights in Taipei – massively dwarfing any other Pride marches in Asia. And Taiwan will probably be the first country in Asia to legalize gay marriage, as the leader of the opposition supports it, a petition calling for it is attracting thousands of signatures and one gay rights activist believes he will successfully sue the City of Taipei to recognize his own same-sex marriage.
[4] type="1">
The New York Times reported in October 2014 that “For Asia’s Gays, Taiwan Stands Out as Beacon”.[5] This was a report of the 2014 Gay Pride march, and states:
Waving rainbow flags and banners demanding same-sex marriage, the revelers set off from Taiwan’s presidential palace, drawing cheers and thumbs-up from spectators along the way.
For the 13th year in a row, the gay pride march took over the streets of the capital on Saturday in a boisterous, freewheeling demonstration of how far Taiwan has come in the two decades since multiparty democracy replaced martial law and authoritarian rule.
. . .
When it comes to gay rights in Asia, Taiwan is a world apart. Openly gay and lesbian soldiers can serve in the military, and the Ministry of Education requires textbooks to promote tolerance for gays and lesbians. In recent years, legislators here have passed protections for gays, including a law against workplace discrimination.
A bill to legalize same-sex marriage has been introduced in Taiwan’s legislature, although it still faces strong opposition from Christian activists and their allies in the governing Kuomintang.
“Taiwan is an inspiration for much of Asia,” said Grace Poore, director of Asia and Pacific island programs at the International Gay and Lesbian Human Rights Commission. “They are way ahead of their neighbors.”
[5] >
The 2014 US State Report for Taiwan relevantly states:[6]
Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity
The law stipulates that employers cannot discriminate against job seekers on the basis of sexual orientation and also prohibits schools from discriminating against students on the basis of their gender temperament, gender identity, or sexual orientation. Activists for lesbian, gay, bisexual, transgender, and intersex (LGBTI) rights said discrimination against LGBTI individuals was more widespread than suggested by the number of court cases, due to victims’ reluctance to lodge formal complaints. Reported instances of violence against LGBTI individuals were rare, and the police response was adequate. Advocacy groups were unable to collect reliable statistics on violence targeting LGBTI individuals because the law does not define hate crime, so police do not use that category to disaggregate cases. LGBTI rights activists said the inability of unmarried persons to obtain fertility treatments and adopt children resulted in discrimination against LGBTI persons. The Center for Disease Control operates LGBTI awareness and assistance centers in Taipei, New Taipei City, Taoyuan, Hsinchu, Miaoli, Taichung, Tainan, and Kaohsiung that offer services including counseling and free HIV testing.
[6] >
Given this country information, the Tribunal does not accept that one or more of the five Convention reasons, including membership of any one of the particular social groups claimed (sexuality and transgenderedness), will be the essential and significant reason for the applicant being harmed if she returns to Taiwan.

Conclusions

The Tribunal considered each of the applicant’s fears of serious harm amounting to persecution both individually and cumulatively. The Tribunal does not consider that the applicant has real chance of serious harm for any of the reasons claimed, or cumulatively, or arising on the evidence. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason in Taiwan now or in the reasonably foreseeable future and that the Tribunal is not satisfied that the applicant is a refugee under s 36(2)(a) of the Act.
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) of the Act.

Are there substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia the applicant will suffer significant harm?

In determining whether the applicant meets the complementary protection criterion under the Act, the Tribunal has considered whether, in light of the findings above, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real chance that the applicant will suffer significant harm. In this respect, the Tribunal notes that all of the applicant’s claims to complementary protection involved the same claims and facts as her claims to refugee status.
Significant harm for these purposes is exhaustively defined in s 36(2A) of the Act: see 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 them; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment. Having regard to the information discussed above, the Tribunal finds that the applicant will not be subjected to deprivation of life or the death penalty or torture from anyone in Taiwan.
The Tribunal has assessed each of the applicant’s claims, as summarised above.
Having considered the applicant’s circumstances individually and cumulatively, the Tribunal is not satisfied that the applicant is at a real risk of significant harm, if removed from Australia to Taiwan.
The Tribunal finds that there are not substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that he would suffer significant harm in terms of s 36(2)(aa) of the Act.

CONCLUDING PARAGRAPHS

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).
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.

R. C. Titterton

Member

[2016] AATA 4738

14 November 2016

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