1619689 (Refugee)

[2019] AATA 5929

1619689 (Refugee) [2019] AATA 5929 (10 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619689

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Tamara Hamilton-Noy

DATE:10 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 10 July 2019 at 2:52pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – exploited by employer – fears harm from gang members – different application before Tribunal raised similar claims, with similar wording, sentences and format – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 424A, 499

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Taiwan, applied for the visa on 27 March 2015. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. 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

9. The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Claims for protection

10. The applicant travelled to Australia on an apparently genuine Taiwanese passport and has at all times maintained that he is a citizen of Taiwan. The Tribunal finds that the applicant is a citizen of Taiwan and has assessed his claims against Taiwan as his country of nationality.

11. The applicant, as part of his protection application, provided a written statement about his stated reasons for leaving Taiwan:

    I came from Taiwan and arrived in to Australia in 2013.  I felt I was insecure living in Taiwan so I run away from my home country.  I would appreciate if immigration can consider my claim and protect me.

    I used to work as [Occupation 1] in Taiwan and I was exploited by my employer by his deducting my wages. With the economic recession in the last few years, most officials had become corrupt and most bosses had become oppressive towards their employees by means of firing them at will.

    Since we had no trade union to protect our interests and the government just turned a deaf ear to our complaints, we could find no place to air our grievances.  My father suffered from [a medical] problem and need money for treatment.  My parents had a small business but recently, because of the recession, they couldn’t pay off their loans to the bank in time, so the bank wanted to close down their business and put it up for public auction.  So we went to the governmental departments to complain and ask the officials to give us justice only to be turned down by them.  I declared we would go to higher authorities and demand the officials favouring Mafia-like gangs to step down from their offices.

    That night when I was on my way home, I was assaulted by several gangsters and got hurt by them.  When I was back at home, I received a threatening letter ordering us to pay off the debt immediately or for me to leave Taiwan.  Otherwise, they threatened, my safety wouldn’t be guaranteed.  It was then did I realize that the Taiwanese government was advocating democracy and freedom on the surface, but in fact, it was hypocritical in claiming itself as a government for the people.  It even went so far as to collude with the underworld leaders in pursuit of their own interests.  I followed the advice from my family members and set out on my journey to Australia.  I did so in order to be able to live in a safe country.  I’m filing this application because there’s no discrimination or abuse of human rights here in this country.  But I’m convinced I will surely be faced with dangers if I’m ever to go back to Taiwan.

12. Prior to the hearing, the Tribunal wrote to the applicant under s.424A on 22 May 2019 inviting him to comment on or respond to information.  In the correspondence, the Tribunal noted that it had another application before it that raised similar claims, with similar wording, sentences and format used in the statement attached to the other applicant’s claim and in the statement attached to the applicant’s claim.  The Tribunal noted, in particular, that in the other letter, the applicant also claimed to have come to Australia due to feeling insecure; that they were exploited by their employer by his deducting wages; that with the economic recession in the last few years, most officials had become corrupt and most bosses oppressive and were firing employees at will; that due to a lack of a trade union, they could find no place to air grievances; that their parents were unable to pay off their loans to the bank in time and the bank wanted to close the business and put it up for public auction; that they had gone to government departments to complain and ask the officials to give them justice only to be turned down by the officials; that they declared they would go to higher authorities and demand the officials favouring Mafia-like gangs to step down from their offices; that that night when on their way home, they were assaulted by several gangsters and hurt; that they received a threatening letter to pay off the debt immediately or leave Taiwan, or otherwise their safety would not be guaranteed; that it was only then that they realised the Taiwan government was advocating democracy and freedom but was hypocritical in claiming itself as a government for the people; that it even went so far as to collude with underworld leaders in pursuit of their own interests; that the applicant had followed advice from family members and set out on their journey to Australia; that they did so in order to be able to live in a safe country and that there is no discrimination or abuse of human rights in Australia; and that they are convinced they will surely be faced with dangers if they are ever to go back to Taiwan.

13. The applicant was invited to comment or respond to this information.  The applicant provided the following in response to the letter:

    First of all, I am bit shock after knowing the scenarios described through translation assistance in regards to my previous statement lodged.

    Please allow me to explain specifically about the background when I prepared the statement through assistance of someone else.  To be frank, I am unable to complete the statement due to my English language barrier and have to rely on other people’s help.  In fact, I made this statement through a person who introduced by an acquaintance of mine but I didn’t knew of him anymore and lost contact with him.

    I have orally introduced my background including my hardship and sufferings once experienced in [that] sector in my origin, Taiwan.  I was responded to leave everything with him as all my application will be done well with his promise on his knowledge and expertise in this regard.  I was also told to be relaxed with relief as this is not a big deal for him according to his ability.  Having heard about such, I put a trust on him and sighed with relief indeed.

    I don’t like the Taiwan government authority who always prioritize employer’s interest and take advantage of working class and care nothing about people in struggle.  I was put on brink of life and edged by society to stand lonely and desperately.

    I felt no good, and lived hopeless in my origin and wanted to find a place with dignity to settle and I was told Australia is an ideal place with a fair-go.  This is what my situation is all about and I hope my venerable situation can be better understood and compromised.  I wish to gain my self-esteem and grant a protection with humanitarian concern.

14. The applicant’s response did not address the concerns set out in the Tribunal’s correspondence, that is, the closeness with another matter, aside from stating that the statement before the Tribunal was prepared with someone else’s help.  The applicant was also invited to a hearing on 20 May 2019 scheduled for 26 June 2019 and did not attend the scheduled Tribunal hearing to explain these discrepancies.

15. There was no evidence before the Tribunal to support the claims made in the applicant’s statement.  The Tribunal is prepared to accept that the applicant had assistance in preparing the written statement and finds that he is not maintaining that the claims in the written statement are correct.

16. Having regard to the identical nature of the claims, the Tribunal was not satisfied that the applicant’s reasons for leaving Taiwan were as set out in the statement.  The Tribunal did not accept that the applicant was exploited by his employer and that the employer deducted his wages, that his father had a [medical] problem and needed money for treatment, that his parents were unable to pay the loan for their business and the bank wanted to close the business and put it up for public auction, or that the applicant approached government departments but was refused help.  The Tribunal did not accept that the applicant was assaulted by gangsters or that he received a threatening letter before he left Taiwan. 

17. The Tribunal accepts that the applicant is a citizen of Taiwan.  The Tribunal finds that the applicant would not be targeted by gangsters or other groups if he were to return to Taiwan in the foreseeable future.  The Tribunal is not satisfied that the applicant has a well-founded fear of persecution on his return to Taiwan on the basis of the claims raised in the protection application. 

18. The applicant stated in his response to the Tribunal that he doesn’t like the Taiwanese government as they prioritise interest of employers and take advantage of the working class; and that he experienced hardship and sufferings in [a certain] sector.  The Department of Foreign Affairs and Trade’s Country Brief on Taiwan describes Taiwan as a vibrant democracy.[1]  A recent Country of Origin Information Services Section (COISS) report on Taiwan states that Taiwanese party-politics is a robustly contested affair, that protests are part of political life and rarely become violent, the National Police Administration is effective and well-regarded and that the judiciary is generally independent and court rulings generally fair, although the system’s impartiality in politically sensitive cases has been questioned.[2] The COISS report further notes that corruption still persists in some private-government relations but is less pervasive than in the past, that the government has implemented anti-corruption measures and legislation and that Taiwan has a low crime rate and one of the lowest violent crime rates worldwide.

    [1] Department of Foreign Affairs and Trade, County Brief Taiwan, available at

    [2] Department of Home Affairs, Country of Origin Information Services Section (COISS), Common Claims, Republic of Taiwan (China), effective from 8 January 2019.

19. The country information considered by the Tribunal indicates a functioning democratic system is operating in Taiwan.  There was no information identified by the Tribunal suggesting that the government prioritises employers and takes advantage of the working class. There is no information before the Tribunal that persons working in [this] sector experience hardship or suffering.  The Tribunal does not accept that these claims establish a well-founded fear of serious harm if the applicant returns to Taiwan in the foreseeable future.

20. The Tribunal then considered the alternative criteria in s.36(2)(aa), that is whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Taiwan.  The Tribunal was not satisfied on the evidence before it that the applicant is at real risk of significant harm, having regard to the definition of significant harm  as set out in s.36(2A) of the Act.

21. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

22. 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 criteria in s.36(2).

23. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Tamara Hamilton-Noy
    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.

    …