1619005 (Refugee)

1619005 (Refugee) [2017] AATA 2358 (24 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619005
COUNTRY OF REFERENCE:                  Taiwan
MEMBER:Christopher Smolicz
DATE:24 October 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 24 October 2017 at 9:24am

CATCHWORDS
Refugee – Protection Visa – Taiwan – Nationality and race – Foreign-born ethnic Chinese – Social group – Male with a mental illness – Fears harm from loan sharks– State protection - Credibility concerns
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 5L, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 293
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant S v MIMA (2004) 217 CLR 387
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 [in] November 2016 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] April 2015.
Criteria for a protection visa.
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 themself 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.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because:
·he fears harm from loan sharks (money lenders) in Taiwan
·he was born in [Country 1]
·he has been diagnosed with [a mental illness]
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is an [age] year old. He was born in [Country 1]. He declared that he was a Taiwanese citizen. He travelled to Australia on a passport issued by the Republic of China.
The applicant first arrived in Australia [in] February 2012 as the holder of a [temporary visa]. [In] August 2012 he was granted a second [temporary visa] which was valid to [February] 2014. [In] February 2014 he applied for [another temporary visa]. The visa was granted to the applicant [in] March 2014 and was valid until [April] 2015. Since arriving in Australia he has completed a [course]. [In] April 2015 he applied for the protection visa which subject of the current review application.
Summary of Substantive claims
The applicant made the following claims in his Application for a Protection Visa (form C).
He claimed that he travelled to Australia to avoid harm from money lenders and the gangsters. When he was in Taiwan he attempted to make quick money for his family by gambling. He lost money and had to borrow from friends and money lenders. No one would lend money to him anymore. He could not pay back the money lenders on the instalment days. He has been followed, bashed and threatened. He fears for his life. He has been warned that if he goes to the police he will be killed or badly harmed. He is unable to relocate in Taiwan.
The applicant provided the Tribunal with a copy of the delegate’s decision. The delegate found the applicant provided minimal detail and evidence to support his claims. The delegate was also concerned about the delay in lodging the protection visa application and found that the delay cast significant doubt on the applicant’s subjective fear of returning to Taiwan.
New Claims
The applicant provided the Tribunal with a translated statement in which he made the following claims. The applicant stated that when he made his claims in 2015 he did not mention his mental illness and the reason he borrowed money from loan sharks. He claims he did not mention this evidence at the time because language was a barrier and he needed help with translation and he prepared his claim in a hurry.
He now claims the reason he took out a loan for urgent treatment of his mother’s illness. He claims she could not afford to pay the high medical expenses and he had no choice but to borrow money from a loan shark. When the loan shark came to recover the debt he gambled in an attempt to make money to repay the debt. He has been unable to repay the debt and interest has accrued. His mother died in [2014]. He regrets not being able to be with her when she died but he feared harassment from the loan shark.
The applicant claims he has developed [a mental illness] during the period of harassment by the loan sharks. After six months treatment the doctor confirmed that he needs long term treatment.
The Tribunal was provided with a copy of a translated document purporting to be a certificated issued by [a hospital] titled “Certificate of Diagnosis for Conscription”. According to the certificate the applicant was diagnosed with [a mental illness [in] 2010. The certificate purports to be issued according to Article 13 of Conscription Regulation by the National Conscription Agency, Ministry of the Interior.
The applicant claims that because of this illness he could not perform his military service. As a consequence of his mental illness he lost the opportunity to earn a salary from his military service and “excellent work arrangements” after his military service.
He claims he has made a “great recovery” during his four years in Australia. If he returns to Taiwan he will be hunted down by the loan sharks and this will cause him to relapse into his mental illness.
He claims he has lost his [Country 1] citizenship and cannot return to his place of birth. He cannot apply for asylum in [Country 1]. He claims there is a civil war in his birth place in [certain area of Country 1].
He claims that loan sharks and the police are working in collusion and loan shark activities are rampant.
He claims that if he is granted asylum he will work hard and make a contribution to society.
Tribunal hearing
The Tribunal questioned the applicant about why he travelled to Australia and why he fears returning to Taiwan.
The applicant said that he borrowed between $[amount] TWD ($[amount] AUD) from loan sharks. He needed the money to pay for treatment for his mother’s illness. He fears the loan sharks. He heard that there was an agreement between Australia and Taiwan that enable Taiwanese citizens to travel to [Australia]. He decided to travel to [Australia].
The Tribunal asked the applicant when he first borrowed the money. The applicant said he could not remember because it was a long time ago. He does not remember when he first approached the money lenders. He claims he borrowed money on about five to six occasions. He could not borrow the money from family or friends. He worked as [Occupation 1] in Taiwan and did not have enough money.
The Tribunal asked the applicant if he had any documentation or any evidence to confirm that he borrowed money. The applicant said that he did not have any evidence but he might have something in Taiwan.
He claims he had to leave Taiwan in a hurry because the money lenders were chasing him. When asked to explain who was chasing him the applicant said they were “hooligans” but he can’t remember who they were and could not provide further information.
The applicant said he had a female friend who borrowed money from hooligans. She was [attacked] and went to hospital. The hooligans [details of attack]. The applicant said that he thought about his situation and decided to leave. No further evidence was provided regarding the background or profile of the applicant’s female friend.
The Tribunal questioned the applicant about his mother’s illness and why she needed the money. The Tribunal found the applicant’s evidence vague and lacking in credibility. He said that his mother had [details of illness] but he only found out the details of her illness once he came to Australia. He could not recall when she started to obtain treatment. He did not know what treatment or medication she required. He could not tell the Tribunal the cost of the treatment. He was unable to tell the Tribunal when she was diagnosed or what was purchased with the money. He claimed his mother died in [2014] and his family did not tell him she was unwell.
The Tribunal told the applicant it was concerned that he knew so little about his mother medical condition. The applicant said that in Taiwan females are responsible for looking after the elderly and sick. His sister was looking after his mother and she did not tell him much.
The Tribunal asked the applicant how did he know how much to borrow if he did not know the cost of medication or treatment. The applicant said that his sister would tell him there was an emergency and she needed money. He would borrow the money and would give his sister some money and gamble the rest. The Tribunal asked the applicant if he could recall any medical emergency associated with his mother treatment. The applicant said his mother would feel dizzy.
The Tribunal referred the applicant to his statement and asked him to explain what type of harassment he experienced from the money lenders. The applicant responded that they had sticks and bats. Some had guns but they would not use them. The Tribunal had to repeat the question and ask the applicant to explain from his own experience what harm he experienced. The applicant said the gangsters would come to the back door of his home or go the [workplace] where he was working. They would know where he was because he drove a [certain vehicle] and they would recognise his [vehicle]. They would [assault him] and threaten to kill him. They would demand he pay interest. He had to quit his job so they would not find him.
The applicant said that he went to the police but could not recall when. He was not given a report. He claims after he went to the police the gangsters found out and threatened him. The Tribunal asked the applicant what evidence did he provided to the police. The applicant said he told the police that hooligans were chasing him. He does not know how the hooligans found out that he went to the police. He claims the hooligans have a connection with the police.
The Tribunal discussed with the applicant the country information detailed below and concurs with the delegate’s findings that the Taiwanese authorities, including the police and judiciary are reasonably effective in combating criminal activity and protecting civilians from criminal harm.
Having considered the information and the applicant’s profile the Tribunal finds there is no evidence to indicate that the State would be unable to or unwilling to protect the applicant in his particular situation.
The Tribunal also explained to the applicant that it was concerned that his original statement of claims was different from that provided to the Tribunal. For example, in his original statement of claims he did not mention that needed to borrow money for his mother’s illness or that he suffered from a mental illness. The applicant claimed that Chinese is not his first language and has difficulty reading and writing and this made it difficult for him to complete his application.
He did not mention anything about his mental illness because it was a private matter. He claims he did not want his mental health to be the grounds for asking seeking protection. He wants to work in Australia and does not want to be seen as a burden on Australian society. He claims that after ten to twenty years he can return to Taiwan. He claims his face may look different when he gets older and he will not be recognised by the gangsters.
The Tribunal questioned the applicant if he had any medical reports from Australia regarding his mental illness. The applicant said he could not afford a medical report in Australia. He claims his condition is now good since he arrived in Australia. The Tribunal asked the applicant if he was taking any medication for his condition. The applicant said he was taking mediation which his friends brought back from Taiwan. He showed the Tribunal some pills but claimed they were not in their original container. The Tribunal told the applicant that it was unable to identify the medication without a prescription or label.
The Tribunal referred the applicant to his statement where he claims that he developed [the mental illness] during the period of harassment by the loan sharks. The applicant said that he had the condition beforehand. He could not recall when he was first diagnosed. He thinks it could have been 2007 or 2009.
The Tribunal noted that according to his claims he fears gangsters will kill him because he is unable to repay the debt. The Tribunal noted that this is a personal matter and his fear of persecution does not appear to be related to his race, religion, nationality, membership of a particular social group or political opinion (s.5J(1)(a) of the Act). The applicant claimed the gangsters will get him irrespective of whether he can repay the debt. He claims he was born in [Country 1] and as a foreigner he has no rights.
The Tribunal noted that he had not previously made any claim based on his nationality and asked the applicant to explain why he would face persecution in Taiwan because he was born in [Country 1]. The applicant said that he did not finish his schooling in Taiwan because he had difficulties reading and writing in Chinese (Mandarin). He said he had difficulties filling in the forms to apply for the protection visa because his Chinese was not good.
The Tribunal asked the applicant if his ethnicity was Chinese. The applicant said that is grandfather was born in China. The applicant said that the [Country 1’s] authorities would not grant him citizenship because his family came from China.
Country Information
The Tribunal has had regard to the following country information prepared by the Department’s Country of Origin Information Service Section (COISS) in assessing the applicant’s claims for protection:[1]
[1] DIBP, Common Claims Republic of China (Taiwan) COISS effective from 1 June 2017 CRF00C22F72
Race
Taiwan is a largely homogenous society, with minority groups including 14 per cent mainland Chinese and 2 per cent indigenous people. Taiwanese people make up 84 per cent of the population and mainland Chinese constitute 14 per cent of the population. Members of 16 indigenous tribes make up around two per cent of the population. Indigenous people continue to face social and economic discrimination.
Police force
Operating within a low-crime environment, the National Police Administration (NPA) of the Ministry of Interior is effective and well-regarded. The NPA’s main missions are to carry out police and law enforcement in Taiwan, maintain public order, uphold the safety of its citizens and society, prevent hazards and to promote the welfare of its citizens. In 2016, an independent survey showed rising levels of confidence in citizen satisfaction with the police, reaching over 73% that year. There were criticisms that the police had used undue force to remove student protesters from the Executive Yuan in 2014 and a subsequent occupation of the Ministry of Education in 2015 was more restrained. The constitution prohibits arbitrary arrest and detention and this is generally observed.
Crime
Taiwan has a low crime rate and one of the lowest violent crime rates worldwide. There is extensive CCTV coverage throughout Taiwan, which plays a significant role in deterring the majority of criminal activity, as the overall crime rate is 1.3 per cent, and overall violent crime in Taiwan is at a worldwide low of just 0.01 per cent. In the first 11 months of 2016 about 70 per cent of nearly 7,000 economic crime cases involved the infringement of intellectual property rights (IPRs).
….
Loan sharks
Major operations against criminal gangs involved in loan shark and other associated activities are carried out. Violations of domestic financial rules, such as loan shark ring operations or underground economic activity, totalled 947 cases or 19 per cent of total economic crimes from January to August 2016, causing a loss of NT$6.3 billion, or 36.5 per cent of total losses from economic crimes. In May 2015 four police officers along with other suspects alleged to have been involved in supporting a major loan shark were summoned. A large raid was carried out in December 2015 with 142 suspects detained. Twenty people in a New Taipei gang were arrested in August 2016 and bats, firearms and bullets were confiscated.
Judicial system
Some corruption remains in the judicial system although trials are considered to be fair. The judiciary is independent and trials are generally fair. There is an independent and impartial judiciary for civil matters. There is some corruption in the system, although authorities have made efforts to eliminate corruption and reduce political influence in the judiciary. All defendants are presumed innocent until proven guilty and have the right to an attorney.

The USDOS Taiwan Human Rights Report for 2016[2] states that the National Police Administration (NPA) of the Ministry of the Interior has administrative jurisdiction over all police units. Civilian authorities maintained effective control over NPA and authorities had effective mechanisms to investigate and punish abuse and corruption. The law provides criminal penalties for corruption by officials and authorities generally implemented the law effectively.
[2]

"Taiwan - Country Report on Human Rights Practices 2015", US Department of State, 13 April 2016, OGD95BE926327
The Tribunal has had regard to media reports which confirm that the NPA have carried out national wide operations on “loan sharking”. The NPA referred victims /debtors to telephone numbers when faced by gangsters who use violence to recover money.[3]
Mental health in Taiwan
[3] Taiwan Quick Take: Cops bust loan sharks Taipei Times 15 August 2006
The USDOS reports that Taiwan has enacted laws which prohibits discrimination against persons with physical, sensory, intellectual and mental disabilities in employment, education, air travel and other transportation services, access to health care and the provision of other state services. (p.13)
USDOS reports that the Ministry of Health and Welfare (MOHW) and the Ministry of Labour (MOL) are responsible for protecting the rights of persons with disabilities. The law stipulates that authorities must provide services and programs to persons with disabilities. The authorities provided free universal medical care to persons with disabilities. (p.14)
Laws in Taiwan require 3 per cent of the workforce in the public sector and 1 per cent of the workforce in the private sector to be individuals with disabilities. (p.19).
A 2004 report estimated that the total [a certain mental illness]-related health care expenditure was estimated at $[amount].[4]
Conscription
[4] [Details deleted].

The Tribunal has also had regard to the following country information regarding the military service requirements for male citizens of Taiwan:[5]

[5]

Canada: Immigration and Refugee Board of Canada, Taiwan: Military service requirements for male citizens of Taiwan; procedures followed by the military to call up conscripts; whether the requirements are different for permanent residents of Taiwan who are citizens of other countries, such as Vietnam; whether there are exemptions from compulsory military service, including those based on poor health; whether there is an exemption based on living outside the country for an extended period of time; whether a Taiwanese who evaded conscription by leaving the country would be arrested and forced to serve upon his return (January 2006 - April 2006), 20 April 2006, TWN101096.E, available at: 19 October 2017]

…Taiwan's Military Service Act, stipulates that military service is mandatory for male citizens of the Republic of China (Taiwan 2 Feb. 2000, Art. 1). Military conscription may begin on the first of January of the year following that in which a male turns eighteen years old and may be terminated on the thirty-first of December of the year in which he turns forty, known as the "Male's Service Age" (ibid., Art. 3). There is no age restriction for termination of service for officers and junior officers (ibid.). The duration of compulsory military service is twenty-two months (ibid., Art. 16;) All able-bodied male citizens perform their military service (Taiwan 2 Feb. 2002, Art. 4),.
Procedures Followed by the Military to Call Up Conscripts
The Military Service Guide, published by the Ministry of National Defense of the Republic of China, outlines four phases in the recruitment of eligible conscripts for military service: investigation, conscription checkup, drawing, and recruitment (Taiwan n.d.a, "Four Steps of Conscription" Section).
Conscripts, in the investigation phase, are summoned to a recruitment office where they, or a family member, must submit various documents for verification including identification, a photo, and a household registration (ibid.).
The conscription checkup, or physical, allows for the triage of potential recruits into three categories: standing service for active members, substitute service, and exemption status (ibid.).
The drawing phase involves the random assignment of draftees in the standing service category to a particular branch of the armed forces (ibid.).
In the final phase, recruitment orders are sent to draftees ten days before service begins, specifying where and when to report for duty (ibid.).
Health-related Exemptions
According to the Website of Taiwan's Government Information Office and the Taiwan Yearbook 2005, which this office publishes, health is a factor in determining exemption from military service.
Article 4 of the Military Service Act stipulates that
[a] man who is mentally or physically disabled or [has a] serious illness [... and fails to] reach the service standard [is] exempted from the Military Service, called Exempted from Induction (Taiwan 2 Feb. 2000).

The Tribunal discussed aspects of the country information with the applicant at the hearing.
Findings
Country information referred to by the delegate indicates that Taiwan does not recognise dual citizenship and requires foreigners to renounce their original citizenship before they can apply for Taiwanese citizenship.[6] At the hearing the applicant claimed he does not have [Country 1’s] citizenship. The Tribunal finds that the applicant does not have a right to enter and reside in a country other than his country of citizenship, namely Taiwan.
[6] Rudi Smith, “Turning Taiwanese: A Step-By-Step Guide to Acquiring Taiwanese Citizenship” Taiwanease, 01 April 2013, CIS36DE0BB2228
The Tribunal has assessed the applicant’s claims against Taiwan as the receiving country.
Nationality and race
At the hearing the applicant claimed he fears that he will be subjected to persecution in Taiwan because he was born in [Country 1] and his Chinese language skills are poor. The applicant did not mention this claim in his protection visa application and provided limited evidence in support of the claim.
As detailed above country information reports that Taiwan is a largely homogenous society, with minority groups including 14 per cent mainland Chinese and 2 per cent indigenous people. Reports confirm that indigenous people continue to face social and economic discrimination.
The Tribunal accepts applicant was born in [Country 1] and is of Chinese ethnicity. As detailed above the applicant travelled to Australia on a Taiwanese passport. The Tribunal finds that he is a citizen of Taiwan. He is not from a minority indigenous Taiwanese group.
The Tribunal found the applicant’s claims that he faced discrimination in Taiwan based on his race and nationality vague and lacking in detail. The Tribunal was unable to locate any country information to support the applicant’s claim. When asked to expand on his claims he said that he found it difficult to study at high school in Taiwan and withdrew. He said it was hard to find employment. The Tribunal does not accept the applicant’s experience amounts to serious harm. The Tribunal finds that there is no evidence that the Taiwanese authorities or anyone else discriminated against the applicant due to his race or nationality. The Tribunal finds that the difficulties experienced by the applicant at school are due to the level of Chinese language skills. The Tribunal finds the applicant has a work history in Taiwan in [Occupation 1] and [other occupation]. The Tribunal finds that there is nothing preventing the applicant from re-engaging in the workforce in Taiwan in the future. No further evidence was provided in support of the claim of persecution due to his race (ethnicity) or nationality.
The Tribunal has had regard to the applicant’s evidence and finds that there is no real chance that the applicant will face serious harm if he returns to Taiwan because he was born in [Country 1] and his grandfather was born in mainland China. The Tribunal finds the applicant’s fear of persecution based on his race and nationality is not well-founded.
Loan sharks – gangsters
The Tribunal has had regard to the applicant’s claims that he fears persecution in Taiwan because he will be killed or seriously injured by loan sharks / gangsters. He claims the gangsters will harm him because he had to borrow money to pay for his mother’s medical treatment. He could not afford to repay the debts, was beaten and had to escape to Australia.
The Tribunal has had regard to the applicant’s evidence and does not accept that the applicant borrowed any money from ‘underground’ money lenders (loan sharks) in Taiwan. The Tribunal does not accept the applicant’s claim that he was harassed and threatened by loan sharks/gangsters due to his outstanding loans/debts. The Tribunal finds that the applicant manufactured these claims. As a consequence the Tribunal does not accept the applicant will be harmed by loan sharks and/or criminal gangs if he returns to Taiwan in the reasonably foreseeable future.
As detailed above, the Tribunal finds the applicant’s evidence about his mother’s illness, which he claims necessitated him to borrow money to be vague, inconsistent and lacking in credibility. He did not mention this evidence in his original statement of claim. When questioned at the hearing he was not able to provide any meaningful information about what medical treatment his mother required or the cost of the treatment. He was unable to tell the Tribunal when he first borrowed money from the money lenders.
In assessing the credibility of the applicant’s claims the Tribunal is also concerned about the delay in him lodging his protection visa application. The Tribunal would have expected the applicant to lodge the visa at the first available opportunity if he travelled to Australia on a temporary visa escaping persecution.
The delegate had regard to country information from a number of different sources and found that the Taiwanese authorities (police and judiciary) are reasonably effective in combating criminal activity and in protecting civilians from criminal harm. The Tribunal also notes that while there is some corruption within the system, there was no evidence to indicate the State would be unable or unwilling to protect the applicant in his particular circumstances. The applicant did not expand on his claim that the police are corrupt. He did not provide any evidence why he would not seek police protection if he was beaten by gangsters as claimed.
The Tribunal finds the applicant would receive effective protection from the Taiwanese authorities against any threats from money lenders and criminal gangs.
The Tribunal finds that applicant manufactured his claim that he fears persecution from money lenders, loan sharks and gangsters in Taiwan.
The Tribunal has had regard to the applicant’s evidence and finds that there is no real chance that the applicant will face serious harm if he returns to Taiwan because he borrowed money from loan sharks and could not repay his debts. The Tribunal finds the applicant’s fear of persecution because he borrowed money and cannot repay his debts is not well-founded.
Mental illness
The applicant claims that he was diagnosed with [a mental illness] in Taiwan. He claims he was able to access medication in Taiwan. He claims his condition is now improved and he fears he will relapse if he is forced to return to Taiwan.
The applicant did not directly claim he fears serious harm or significant harm in Taiwan due to his mental illness. The Tribunal has however considered the applicant’s claim that he was denied the opportunity to serve in the military due to his mental illness.
Although the applicant has not provided any current medical reports since he has arrived in Australia, the Tribunal accepts that the report prepared by the Taiwanese Ministry of Health and Welfare is genuine. The Tribunal accepts the applicant was diagnosed with [the mental illness] and was issued with a certificate exempting him from conscription in [2010].
The Tribunal has had regard to country information regard Taiwan’s conscription laws and notes that mental and physical health are a factor in determining exemption from military service. The Tribunal notes that that whether or not discriminatory treatment constitutes ‘persecution’ depends on whether the treatment is appropriate and adapted to achieving some legitimate object of the country concerned.[7] A legitimate object will ordinarily be an object that needs to be pursued in order to protect or promote the general welfare of the state and its citizens. As such, a law or its purported enforcement will be persecutory if its real object is not the protection of the state but the oppression of the members of a race, religion, nationality, member of a particular social group or a person with a political opinion.
[7] Applicant A v MIEA (1997) 190 CLR 225, at 258 per McHugh J; Chen Shi Hai v MIMA (2000) 201 CLR 293 per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [28]; Appellant S395/2002 v MIMA (2003) 216 CLR 473 per McHugh and Kirby JJ at [45]. In Applicant S v MIMA (2004) 217 CLR 387, Gleeson CJ, with Gummow and Kirby JJ held that as a matter of law to be applied in Australia, these criteria are to be taken as settled.
According to the evidence submitted by the applicant in 2010 he was diagnosed with “[a disorder]” and “shown obvious [symptoms]”. The report also noted that long term treatment was required. Having regard to the evidence the Tribunal finds that the Conscription Regulations in Taiwan have a legitimate objective of ensuring that candidates are able to reach the service standard to enable them to effectively serve in the military. The Tribunal does not accept that the Taiwanese authorities have enacted a law (the Military Service Act and the Conscription Regulations) which has as its real objective the persecution of people who suffer from mental [illness]. . Secondly, the Tribunal is not satisfied that precluding the applicant from the military service constitutes serious harm in that it amounts to significant economic hardship that threatens the person’s capacity to subsist or a denial of a capacity to earn a livelihood. As detailed above, country information confirms that Taiwan has laws which prohibit discrimination against persons with physical, sensory, intellectual and mental disabilities in employment. The Tribunal notes that the applicant has a work history in Taiwan and there is no suggestion that he will not be able to continue to work in [Occupation 1] or in [an alternate occupation] if he returns to Taiwan in the foreseeable future.
Country information also confirms that the authorities do allocate funds to [certain mental illness]-related health care. The Tribunal finds the applicant has had access to treatment in Taiwan.
Having considered the country information and the applicant’s evidence the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm if he was to return to Taiwan because he is a male with a mental illness in Taiwan. The Tribunal finds the applicant’s fear of persecution is not well-founded.
Complementary Protection
The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions.
For the same reasons as those set out above, the Tribunal does not accept that the applicant borrowed money from loan sharks, was unable to repay the debt and was harmed by creditors or debt collectors or that there is a real risk that he will be subject to harm from creditors, debt collectors or any other persons upon his return to Taiwan.
The Tribunal does not accept that if the applicant returns to Taiwan he will be subjected to torture or he will be arbitrarily deprived of his life.
The Tribunal does not accept that there is any evidence that the applicant has been subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment because he was prevented from undertaking his military service due to his mental illness or because of his race or nationality. As stated above the Tribunal finds the applicant has had access to treatment and medication in Taiwan. Country information also confirms that the authorities do allocate funds to [certain mental illness]-related health care and have laws that prevent discrimination on the basis of mental illness.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan that there is a real risk that the applicant will suffer significant harm, including arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment.
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.
Christopher Smolicz
Member

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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2017] AATA 2358

24 October 2017

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