1622275 (Refugee)

1622275 (Refugee) [2020] AATA 2146 (4 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1622275
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Nicole Burns
DATE:4 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 June 2020 at 2:48pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – political opinion – anti-Myanmar government protest activities – adverse interest to Myanmar intelligence agents – blacklisted by the authorities – credibility concerns – inconsistent and changing evidence – late claim – voluntary return to Taiwan and Myanmar – delay in seeking protection – no further involvement in protest activities since 2007 – other claims – ancestral links with the Chinese Communist Party – revocation of Taiwanese residency – discrimination based on Myanmar origins – fear of a money lender – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33

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 and Border Protection on 9 December 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 (Republic of China) applied for the visa on 15 April 2015. The delegate refused to grant the visa on 9 December 2016.
On 6 May 2020 and 21 May 2020, the applicant gave oral evidence to the Tribunal by telephone about the issues in his case. The Tribunal exercised its discretion to hold the hearings by telephone. The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant agreed to hold the hearings by telephone and did not raise any concerns before, during or after the hearings. The hearings proceeded without any apparent communication difficulties. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal hearings were conducted with the assistance of an interpreter in the English and Mandarin languages.
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 themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia owes protection obligations to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving country
According to information on the Departmental file and confirmed at hearing, the applicant’s name is [Name 1],[1] and he was born on [date] in Myanmar, making him [age] years of age. In 2004 he moved to Taiwan to study at university, and obtained Taiwanese residency in 2012, through his Chinese heritage. At hearing, the applicant said he did not have to renounce his Burmese citizenship at the time because he never had it, living there without nationality status, along with his parents who had moved there from China during the civil war in China and never obtained residency status.
[1] The delegate’s decision records the applicant’s name as [Name 1] however the applicant applied for a review of the delegate’s decision to the Tribunal as [Name 2].
The applicant came to Australia on a working holiday (Subclass 417) visa [in] July 2012 [until] April 2014 on a Taiwanese (Republic of China) passport. He returned to Australia [in] June 2014, again as the holder of a working holiday visa but using a different name ([Name 2]), and a Taiwanese (Republic of China) passport in that name. On the Departmental file are copies of his biodata page (and other visa-related pages) of that passport in the name of [Name 2], born on [date], issued [in] 2014 and valid [to] 2024 by the Ministry of Foreign Affairs. The applicant also provided a copy of the relevant pages of this passport to the Tribunal.
The delegate accepted the applicant was a national of Taiwan (Republic of China) as does the Tribunal for the purposes of assessing his protection claims.
Claims and evidence
In a written statement that accompanied his protection visa application the applicant claimed to fear persecution on return to Taiwan from the Taiwanese government, Taiwanese society, and/or Myanmar agents operating in Taiwan because of his:
·protest activities in Taiwan (against atrocities that had occurred in Myanmar);
·ancestral links with the Chinese Communist Party (CCP); and
·Myanmar origins
At the Tribunal hearing the applicant gave evidence about his background and expanded upon his protection claims, addressed in more detail below. Additionally, the applicant raised a new claim at hearing: that he is also afraid of a former colleague – [Mr A] – and his associates who he borrowed money from and who continued to harass him for interest repayments.
The Tribunal has considered the applicant’s specific claims, as follows.
Involvement in anti (Myanmar) government protest activities
At the protection visa application stage, the applicant stated in his written statement that in Taiwan he and others took part in a protest and group activities protesting the massacre of Buddhist monks and others during the Saffron Revolution in Myanmar by Myanmar’s military government. He claimed following this, reliable sources indicated they were all put on a ‘blacklist’ by Myanmar’s government; his friends have been refused entry at the Myanmar border by the government; and he has received threatening letters regarding their activities. The applicant also claimed he was assaulted by three people in the street one evening; his friend had experienced a similar assault; and they realised that Myanmar’s government had sent many intelligence agents to Taiwan.
In his oral evidence to the Tribunal the applicant said he moved from Myanmar to Taiwan in 2004 to study; he studied [some courses] at [a University]. He completed a [degree] in 2012. He worked in [Occupation 1] in Taipei during university holidays.
The applicant said because he had grown up with war – between guerrillas and Myanmar’s army, in Kachin State in the north of Myanmar – he hated conflict and often protested what was going on in Myanmar in Taiwan, as well as discussing the situation with friends and others there. For example, he attended a protest against the killing of Buddhist monks by Myanmar’s military government in 2007 [along] with around 30 others. The protest was organised by ‘older people’ living in Taiwan, who were from Myanmar originally. He was living in dormitory accommodation attached to his [Occupation 1] work at the time. Afterwards, some of his co-residents spoke critically about his involvement in the protest. He was also criticised for participating in the protest at times by members of the public – usually overseas Chinese-born from Myanmar like him; they told him not to protest, because they did not want to bring the attention of Myanmar’s government to them in Taiwan. They told him if he did not stop, bad things could happen. He said he was also excluded from various activities organised by the Burmese community in Taiwan after his involvement in the protest in 2007.
Around a month after the protest (toward the end of 2007) the applicant said he was attacked by three men whilst walking home from work one evening; he managed to get away when other people showed up. The men – who he described as Chinese but not local, because they had different accents – accused the applicant of being a ‘troublemaker’. Afterwards, he spoke to some friends who had also been at the protest and experienced similar attacks. They believed intelligence agents from Myanmar were involved. The applicant said he reported the incident to the police, but they only gave him a sheet with a case number and did not investigate the matter. As a result of the attack the applicant stopped being involved in any further protests in Taiwan.
The applicant told the Tribunal that he believed intelligence agents from Myanmar were active in Taiwan, based on what many people were saying at the time. When asked if he was ever harassed by them directly, the applicant said ‘no’.
At hearing, the applicant said because of his involvement in anti-Myanmar government protest activities in Taiwan he believed he was blacklisted by Myanmar’s government, making it difficult for him to return. When he returned to Myanmar to visit his sick father in 2014, he was stopped at the airport by plainclothes officers, taken to another site and questioned why he had taken part in a protest in Taiwan. He told them he was ignorant, and they threatened and abused him. He was released three days later after signing a document promising not to be involved in future activities. He claims his mother used her connections to help secure his release. After his release, he stayed in Yangon for a couple more weeks before returning to Taiwan.
The applicant said he started writing a blog whilst at university in around 2005, accessed by the Burmese community living in Taiwan, about news from Myanmar, which he largely gleaned from Taiwan radio. He said he would paraphrase what was reported about the situation in Myanmar. Often people would leave comments – sometimes threatening – so he stopped in 2007. He has not continued blogging (or being politically active in other ways) since, including in Australia; he said he is trying to lead a quiet life here.
The Tribunal has considered the applicant’s claims to have protested against Myanmar’s military government in Taiwan, including his attending a protest against military crackdown on protesters in Myanmar (including Buddhist monks) in 2007, small group activities and writing a blog, and the resultant problems he claims to have experienced from the community and intelligence agents active in Myanmar. For the reasons that follow, the Tribunal has a number of concerns with the applicant’s evidence in this respect.
First, the Tribunal found the applicant’s oral evidence about his alleged protest activities in Taiwan vague, general, and in some respects had grown since his initial claims before the Department. For example, although he claims to have been politically active in Taiwan (against the Myanmar government) since 2005, he struggled to describe how, apart from claiming to have attended one protest in Taipei in 2007. When asked at hearing what other activities he was involved with, if any, the applicant said otherwise he meant just meeting with friends and discussing the situation in Myanmar. When asked if he experienced any problems as a result, he claimed sometimes people would leave negative and/or threatening comments on blogs he allegedly wrote whilst at university about the situation in Myanmar. However, he failed to mention he wrote any blogs in his protection visa application, which casts doubts on his claims in this regard. At hearing, the applicant said that is because he grew up different from others, had his own way of doing things, and his agent (who helped with his protection visa application) advised him what to say.
Second, there are inconsistencies in some respects between the applicant’s oral evidence and his protection visa claims about the problems he allegedly experienced as a result of his activities against the Myanmar government in Taiwan. For instance, in his application he stated that he received threatening letters regarding protest activities because he was on a blacklist. However, when asked if he ever received threatening letters at hearing, the applicant said he had not. When asked about that claim in his visa application, the applicant initially said the threatening letters related to his problems from the person he borrowed money from (considered separately below). Then he said he did receive one letter from representatives of a local Burmese association in Taiwan, cautioning him not to take part in protests or any further action. He also received anonymous comments on his blog posts (as mentioned earlier). His inconsistent and changing evidence in this regard, including introducing new claims, causes the Tribunal to have doubts about his claims to have experienced problems from anyone as a result of his alleged protest activities in Taiwan.
The Tribunal also notes that whilst at hearing, the applicant stated that he reported the assault he allegedly experienced in late 2007 to the police in Taiwan, he makes no mention of reporting the matter to the police in his reasonably detailed written statement that accompanied his protection visa application.
Third, the applicant returned to Taiwan from Australia in 2014 and visited Myanmar shortly thereafter, despite claiming to be of adverse interest to Myanmar intelligence agents in Taiwan (and Myanmar) because of his protest activities in Taiwan in 2007, including being blacklisted by the authorities in Myanmar. At hearing, he claimed on arrival in Myanmar he was questioned and detained for three days however he made no mention of this alleged incident at the protection visa application stage. Again, he explained that an agent helped with his application and told him what to include. The Tribunal is not persuaded by this explanation, considering that if the applicant had been detained and questioned by the authorities in Myanmar about his protest activities in Taiwan, he would not have failed to mention it. The applicant said he returned to Taiwan and Myanmar at that time because his father was sick. He claims this was why he obtained another Taiwanese passport with a different name before visiting Myanmar, to ensure the Myanmar authorities would not identify him. However, his explanation in this regard is undermined by his claims that the authorities in Myanmar did identity him (and question and detain him for three days) over his protest activities in Taiwan.
Fourth, the Tribunal finds it implausible the applicant was threatened and attacked by intelligence agents from Myanmar in 2007 in Taiwan as claimed. Whilst possible they existed, Taiwan is a democracy, protests are allowed, and the applicant’s attendance at one protest, along with others (including around the world, according to the applicant’s oral evidence), leads the Tribunal to doubt he had such a profile to lead to being monitored and harassed and attacked by agents in a foreign country as claimed. Further, as discussed at hearing, his claims in this regard are not supported by country information (as detailed in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review) that indicates Myanmar had no formal diplomatic presence in Taiwan prior to the establishment of the Myanmar Trade Office (Ministry of Commerce) in Taipei in June 2015.[2]
[2] ‘Myanmar opens trade office in Taiwan in bid to boost ties’ 2015, The China Post, 25 June,
Fifth, the applicant claimed to have left Taiwan in 2012 due to a number of fears, including of Myanmar intelligence agents active in Taiwan who were unhappy about his protest activities, yet he returned to Taiwan from Australia in 2014 and did not apply for a protection visa until April 2015. At hearing, the applicant said in Taiwan he tried to be independent, but fell into trouble with the money lenders; in Australia gradually he came to understand there were a few things he could do, including realising he could apply for protection and he did so with the help of an agent. He added that initially he was working in a rural area, which barely had telephone signals, to explain why he was not aware for some time that his visa had expired;[3] when he checked, he realised he had to do something, then he found an agent. The Tribunal is not persuaded by this explanation particularly given the applicant is highly educated (to degree level) and had managed to live independently in Taiwan and make the necessary arrangements to work in Australia through working holiday visas.
[3] It was cancelled on 2 September 2014.
The Tribunal accepts the applicant may have participated in a protest in Taipei in 2007 relating to the ill treatment of protesters in Myanmar (referred to as the ‘Saffron Revolution’)[4] along with others. Based on the applicant’s own evidence, such protests occurred around the world at the time, given the collective outrage at the military’s heavy-handed response to protesters in Myanmar. The Tribunal also accepts that during this time (and before and after) the applicant talked with friends in Taiwan about the situation in Myanmar. However, given the above concerns with aspects of the applicant’s evidence, including inconsistencies about what happened to him as a result, the Tribunal does not accept that the applicant was threatened or attacked by anyone (including Myanmar’s agents) in Taiwan as a result of his protest activities or for any reason. The Tribunal accepts community members in Taiwan, including those originally from Myanmar, may have told the applicant not to undertake such activities, and he may have felt excluded from participating in various Burmese cultural activities in Taiwan as claimed, however such actions do not involve serious harm as required: s.5J(4)(b) of the Act. Further, as noted earlier, the Tribunal does not accept the applicant wrote blogs about the situation in Myanmar. It follows that the Tribunal does not accept that he received negative (anonymous) comments about these blogs.
[4] Saffron Revolution: A Look Back – Radio Free Asia,

The Tribunal also does not accept that the applicant received threatening letters from anyone warning him against his involvement in protest activities, including from a Burmese association as claimed at hearing, given this aspect is a late claim and inconsistent with his written claims at the protection visa application stage. The Tribunal accepts the applicant visited Myanmar from Taiwan in 2014, noting there is a copy of a Myanmar visa on his passport and the applicant stated as such in his protection visa application. However, he did not mention that he was questioned and detained when he arrived by the authorities there; instead he states in his application that he used his Taiwanese passport to go there and the ‘Burmese government did not know’.[5] Given this, and taking into account the earlier reasons, the Tribunal does not accept that the applicant was blacklisted by the authorities in Myanmar or detained (and questioned) for three days when he visited there in 2014.
[5] In answer to question 57, Form 866C.
For these reasons, the Tribunal finds the applicant does not face a real chance of serious from the Taiwanese authorities, Myanmar’s agents, or the community on return to Taiwan because he participated in an anti-Myanmar government protest in 2007 or because he spoke about the situation in Myanmar with his friends in Taiwan.
The Tribunal has gone on to consider whether the applicant would be involved in protest activities on return to Taiwan in the foreseeable future. At hearing, when asked if he would, he noted his fears in doing so. The Tribunal notes in his protection visa application in answer to a question[6] about why he returned to Taiwan in 2014 (form Australia), the applicant replied to ‘promote democracy activities’, however he made no mention of this at hearing and instead indicated that he did not spend much time in Taiwan and only stayed in Taipei. Whilst the Tribunal has accepted the applicant attended a protest in 2007 and talked about the situation in Myanmar at times with friends, it does not accept that he was otherwise politically active. Furthermore, at hearing, he said he has not been active at all in Australia, despite the apparent freedom here; he said he has not had the opportunity and has lost contact with local community groups here (he did not elaborate). However, he said he is still paying close attention to what is happening in Myanmar, for example, through the news.
[6] Question 65, Form 866C.
The Tribunal accepts that the applicant may continue to keep abreast of developments in Myanmar, from the news for example, as claimed, and accepts his evidence at hearing that he does not like war given his upbringing and experiences in Myanmar. However, given his limited involvement in protest activities in Taiwan, and no further involvement in any such activity in Taiwan or Australia since 2007, the Tribunal does not accept that the applicant would be involved in protest activities or otherwise be politically active on return to Taiwan in the foreseeable future. He therefore does not a face a well-founded fear of persecution on return to Taiwan on (actual or imputed) political opinion grounds from the Taiwanese or Myanmar’s authorities, or the community.
The Tribunal notes at hearing the applicant said he is also afraid what has happened in Hong Kong in terms of protests against China might erupt in Taiwan, and that he wants a peaceful and calm life in Australia, particularly coming from war in his childhood. Whilst it is understandable that the applicant wants a peaceful and calm life, his claimed fear of large protest activity in Taiwan against China, similar to what has been recently experienced in Hong Kong, is largely speculative at this stage, and the Tribunal is therefore not satisfied the applicant faces a real chance of serious harm on return to Taiwan in the foreseeable future on this basis.
Revocation of the applicant’s Taiwanese residency
The Tribunal has considered the applicant’s claimed fear that if his father’s links to the Chinese Communist Party become known to the Taiwanese authorities, they will revoke his Taiwanese residency.
In his protection visa application, the applicant stated that some of his ancestors were soldiers servicing the army of the Chinese Nationalist Party (CNP – who became the government in Taiwan) during the civil war between the Chinese Community Party (CCP) and the CNP. He stated generally he was granted residency in Taiwan as a descendent of his ancestors who fought for the CNP and specifically because his father’s older brother served in the army of the CNP before. However, he claims some other ancestors served in the army of the CCP and therefore he lives in fear that if the Taiwanese government finds out, his residency may be invalidated due to his ancestral links to the CCP.
At hearing, the applicant explained his background, summarised as follows. Hs said he was born in Myanmar to Chinese parents, who had moved there around the time of the civil war in China and never obtained citizenship or identity documents. In 2004, his parents arranged for him to leave and study in Taiwan; this involved purchasing a Myanmar passport in a different name and engaging an agent to make all the necessary arrangements for him to leave Myanmar (and go to Taiwan). Initially, in Taiwan, he used his ‘Chinese’ name ([Name 1]) and held a temporary visa, available to overseas Chinese who study in Taiwan.
In 2012, when the Taiwanese government relaxed their policies to allow descendants of the former Nationalist Army from mainland China obtain residency, he applied for (and was granted) a long-term residency visa, because some of his mother’s distant relatives had been involved with the Nationalist Army. He also obtained a Taiwanese passport that same year in the name [Name 1], which he used to travel to Australia in 2012. He obtained his current passport – issued [in] 2014 – when he returned to Taiwan from Australia in a different name: [Name 2]. The applicant explained he did so because his father was ill, and he wanted to return to Myanmar to see him but was afraid to do so because he believed he was blacklisted due to his involvement in anti-Myanmar government protest activities in Taiwan. The applicant travelled to Myanmar on that passport, and then to Australia, in 2014 and did not indicate he had any problems from the Taiwanese authorities. He said he applied for that passport – his second Taiwanese passport – in accordance with the normal procedures and had no problems.
The applicant told the Tribunal his father belonged to a faction on the same side as the Chinese Communist Party – who were enemies of the Nationalist Army – prior to leaving mainland China to go to Myanmar (then Burma) many years ago. He said he is afraid his permanent residency may be revoked by the Taiwanese authorities if this is discovered.
The Tribunal asked the applicant why he claimed at the protection visa application stage that he was granted permanent residency in Taiwan because his father’s older brother was a soldier serving in the army of the Chinese Nationalist Party (CNP) during the civil war with the Communist Party. The applicant explained that his father was on the Communist Party side, whilst his father’s brother was on the CNP side, noting it was not uncommon for families to be split, and also to lose contact with one another. He did not explain the inconsistency between his evidence in the protection visa application and at hearing about which relatives/ancestors in particular enabled him to obtain permanent residency (as their descendant) in Taiwan in 2012. Possibly he may not be clear himself on what basis exactly he was able to obtain permanent residency; that is, whether through his maternal relatives or paternal uncle (or others). Nonetheless, the Tribunal accepts the applicant successfully obtained permanent residency in 2012 based on being a descendant of the former Nationalist Army/CNP.
The applicant claims to fear his permanent visa will be revoked if the authorities in Taiwan discover his ancestral links to the Communist Party in China, the enemies of the CNP. His evidence has been inconsistent in this respect. Specifically, at hearing, as noted earlier he claimed that his father belonged to a faction on the same side of the Communist Party, however in his protection visa application he makes no mention of his father having links to the Communist Party, and instead states that he has other ancestors who served in the army of the Communist Party and he feared if the Taiwanese government checks his other ancestors’ files and finds out they served in the Communist Party, his permanent residency will no longer be valid. Therefore, the Tribunal does not accept the applicant’s father was linked to the Communist Party in the past as claimed.
The Tribunal accepts the applicant’s claims that he has other ancestors who were linked to the Communist Party in the past, who were the enemies of the CNP. However, country information does not support his contention that this would result in the applicant’s permanent residency being revoked, if the Taiwanese authorities became aware of this fact. As discussed at hearing (and noted by the delegate in their decision record, a copy of which the applicant provided to the Tribunal on review), there is no indication in Taiwan’s Nationality Act (2006) that a person’s ancestral links to the Communist Party are grounds for revoking nationality rights (see specifically the circumstances on loss or revocation of nationality rights in Article 11 of that Act).[7]
[7] >
When this was discussed at hearing, the applicant said at the time he applied for permanent residency the relaxing of the government’s policies was not considered a regular migration act, but a special case ruling. Even if that was the case, there is no suggestion that the applicant’s permanent residency was obtained unlawfully, and given it was open only to those who are descendants of the CNP (according to the applicant’s evidence), the Tribunal is of the view that before granting permanent residency the Taiwanese authorities would have enquired and been satisfied about the applicant’s ancestors’ past associations. The applicant successfully obtained permanent residency, was issued a Taiwanese passport twice since then, and has exited and re-entered Taiwan multiple times without experiencing any problems.
Given these considerations, the Tribunal does not accept that the applicant’s permanent residency would be revoked, even if the applicant’s ancestral associations with the Communist Party become known. He therefore does not face a real chance of becoming homeless or stateless, as claimed. His fear of being persecuted on this basis is not well-founded.
Fears due to Myanmar origins
The Tribunal has considered the applicant’s claims to fear persecution on return to Taiwan from the community due to his Myanmar origins.
In his protection visa application, the applicant stated that due to his Chinese ethnicity, Myanmar people treat him as Chinese and in Taiwan people treat him as Myanmarese; in Taiwan, because of his ‘special and sensitive’ identity, his graduation was delayed for many years; he arrived in Taiwan in 2004 and did a one-year language course before university; in his first year of university, he could not get used to the study there and had to suspend his study for a year; and he was not able to graduate until June 2012. The Tribunal notes at hearing the applicant said his degree took longer because as an overseas Chinese, he had to undertake preliminary language studies, (for example), which the Tribunal accepts but does not find this discriminatory.
At hearing, the applicant was asked if he experienced any specific problems, including discrimination, due to his origins from Myanmar whilst living in Taiwan. He said after he participated in an anti-Myanmar government protest in 2007, he was excluded by the Myanmar community and also received negative comments online from other Burmese living in Taiwan. When asked if he experienced any problems from others due to his origins from Myanmar, the applicant said he did not initially whilst he attended language school. However, after he moved [to] attend university, sometimes people laughed at him because of his accent and because his Chinese language was not very good. He was also lonely. The Tribunal accepts the applicant may have been laughed at whilst at university for his accent and was lonely, and this may occur again on return to Taiwan. However, whilst difficult, such actions and states of being do not involve serious harm as contemplated in the Act.
The Tribunal also accepts the applicant may have felt excluded by some elements of the Burmese community in Taiwan in the past, and some may have posted disparaging comments online in 2007 in an attempt to dissuade him from participating in further protests. However, such actions do not involve serious harm as contemplated by the Act.
Ccountry information reports that 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.[8] Members of 16 indigenous tribes make up around 2 per cent of the population.[9] There are reports indicating that indigenous people continue to face social and economic discrimination.[10]
[8] ‘Political Risk Yearbook: Taiwan Country Report’, January 2017, The PRS Group, p.10.
[9] ‘Freedom in the World 2016 – Taiwan’, Freedom House, 29 June 2016,
[10] ‘Freedom in the World 2016 – Country Report on Human Rights Practices 2016 – Taiwan’, US Department of State, 3 March 2017, p.15, Section 6 ‘National/Racial/Ethnic Minorities’ Taiwan’, Freedom House, 29 June 2016, p.4, F. Rule of Law.
There are also reports about experiences of discrimination by some Burmese Chinese migrants in Taiwan,[11] however there are other reports of several waves of Burmese Chinese being welcomed in Taiwan, as discussed at hearing.[12] Reports indicate that Taiwan has a population of about 40,000 Burmese in Taiwan, and many Burmese in Taiwan have established successful businesses in Huaxin Street in Taipei (for example). It is also reported that recent economic and political reforms have presented a number of opportunities to Taiwan’s Burmese community.[13] At hearing, the applicant said this is true if he lived in northern Taiwan and he claimed he could not live in the north on return because the debt collectors were able to trace him wherever he was in the past. For reasons below, the Tribunal does not accept the applicant’s claims about debt collectors and it notes he has lived in the south and north (Taipei) in the past and is satisfied on the evidence before it that he would be able to live in the north again, if required.
[11] For example, Chang, Wen-Chin 2014, Beyond Borders: Stories of Yunnanese Chinese Migrants of Burma, Cornell University Press, Ithaca, Egreteau, R & Jagan, L 2013, Soldiers and diplomacy in Burma: Understanding the foreign relations of the Burmese praetorian state, NUS Press & IRASEC, Singapore, p.383.
[13] Taiwan’s Little Burma 18 March 2017, The Diplomat >
The Tribunal notes the most recent 2019 United States Department of State human rights practices country report for Taiwan makes no mention of Chinese persons of Burmese origin experiencing discrimination or ill treatment in Taiwan.[14]
[14] U.S Department of State, 2019 Country Reports on Human Rights Practices: Taiwan, March 11, 2020, >
For these reasons, including this country information, whilst indicating that some persons of Burmese origin may have experienced discrimination in Taiwan, the Tribunal is not satisfied that there is widespread discrimination or ill treatment against persons of Myanmar origin in Taiwan as to amount to persecution, as discussed with the applicant at hearing. For these reasons and given the Tribunal does not accept that the applicant was subject to discrimination amounting to persecution because of his Myanmar origins in the past in Taiwan, the Tribunal finds he does not face a well-founded fear of persecution from anyone on return to Taiwan because of his Myanmar origins in the reasonably foreseeable future.
Fear of a money lender
At the Tribunal hearing, the applicant claimed to fear serious harm from a former colleague ([Mr A]) and his associates who he borrowed money from, and who continued to harass him for more money.
Specifically, the applicant said towards the end of 2007 he borrowed [amount] Taiwanese dollars from a colleague at the [workplace] where he had worked intermittently – [Mr A] – to help cover his living costs whilst studying and school fees. The arrangement was informal, there was no written agreement, and [Mr A] told the applicant he did not have to pay much interest. However, in around May/April 2008 when the applicant offered to repay him [amount] Taiwanese dollars, [Mr A] refused to accept it, and instead demanded he pay him [higher amount] Taiwanese dollars. The applicant did not have that amount of money, the matter dragged on, and before long he had accrued a debt of [even higher amount] Taiwanese dollars.
The applicant said he regularly received threats and was harassed by collection gang members linked to [Mr A] to repay the debt. At some stage, he remembers signing something saying that he now owed [Mr A] [amount] Taiwanese dollars. He has paid him back over [some amount] Taiwanese dollars but is afraid they will keep harassing him on return to get more money from him. He noted such behaviour is rife in the [Occupation 2] industry, which is controlled by such gangs.
The applicant said the last time he had contact with [Mr A] or his associates was during the 2012 winter holidays. Often, they came to his school or [workplace] and would threaten or harass him, including a threat to chop off his hands and feet if he told the police or school administrators (so he did not dare to).
As discussed at hearing, the Tribunal has a number of concerns about the applicant’s claims to have borrowed money from [Mr A], been harassed and threatened by him and his associates, and to fear serious harm from them on return. The reasons for these concerns are outlined below.
First, the applicant failed to mention these matters to the Department in his protection visa application. At hearing, the applicant explained that at the time, he did not know English or the system; he was just happy to be away; and then he tried to do everything through an agent who told him what to do. This does not explain why he failed to mention his fears about outstanding debts at all in his application form, despite raising other claims which he continues to rely on.
Second, the applicant’s oral evidence about this matter was vague in some key respects. For example, he was unsure if he had to pay interest, explaining that the arrangement was casual, [Mr A] was nice, and he trusted him; he only realised later that it was a way to try and extract more and more money from him. Yet he also claimed the amount owing ballooned to [amount] Taiwanese dollars and he remembers signing ‘something’ at ‘some stage’ but his evidence was very vague.
Third, the applicant returned to Taiwan from Australia in 2014 (and again, briefly, after visiting his parents in Myanmar that same year) despite claiming he is fearful of [Mr A] and his associates, and nothing happened to him whilst he was there. Furthermore, the last time he has had contact with [Mr A] was in 2012 and the applicant has not indicated he has tried to contact him since. The applicant claims he had to return to Taiwan in 2014 in order to get another (Taiwanese) passport to visit his father in Myanmar, who was unwell, and that he did not spend much time in Taiwan. Whilst the Tribunal accepts there may have been compelling reasons for his return, and that he did not spend much time in Taiwan, the applicant’s decision to return, and lack of problems experienced from [Mr A] on return, further casts doubts on his claims in this respect when combined with the other concerns set out above.

For these reasons, the Tribunal does not accept that the applicant borrowed money from [Mr A] in the past in Taiwan, that [Mr A] or his associates harassed or threatened the applicant, or that he has any outstanding debts to [Mr A] or anyone in Taiwan. It follows that the Tribunal finds the applicant does not face a well-founded fear of persecution from [Mr A] or his associates for any reason on return to Taiwan.
Other matters:-
In his protection visa application, the applicant also stated that he had no job in Taiwan and he cannot get jobs there. In another part of the application he stated that in Taiwan he did not have basic human living rights, there is work discrimination, and he cannot survive there. However, at hearing, he said he did work in the [Occupation 2] industry during university holidays. When asked why he claimed he cannot get a job there, the applicant said because his only work experience in Taiwan has been in the [Occupation 2] industry, which is controlled by debt collectors, who chased and harassed him. For reasons above, the Tribunal has not accepted his claims in this regard.
The Tribunal accepts the applicant’s work experience in Taiwan has been limited to [Occupation 2]. However, he has had some further work experience in Australia [in different workplaces]. He is also educated to degree level. Although it may be somewhat difficult for the applicant to obtain work on return to Taiwan, taking into account these considerations, the Tribunal is not satisfied that he would face serious harm in the form of 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; or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist as contemplated in s.5J(5)(d-f) of the Act on return to Taiwan.
The Tribunal notes in his protection visa application the applicant claims he suffered from anxiety every day during his life in Taiwan because he was on Myanmar government’s blacklist and some of his ancestors were officials in the Communist Party’s government during the civil war between the CNP and CCP. Whilst the applicant did not mention any specific mental health concerns at hearing, he did note the stress he faced in Taiwan particularly due to being harassed by debt collectors, and in the second hearing he noted after discussing these matters at the first hearing he started to have nightmares (again). For reasons above, the Tribunal does not accept the applicant was harassed by debt collectors in Taiwan or was blacklisted by Myanmar’s government. It accepts he may have experienced anxiety and stress there, and may on return, for a number of reasons. However, on the limited information before it about the applicant’s mental health, the Tribunal is not satisfied that any stress and anxiety he may experience on return would be so severe as to result in a real chance of serious harm for a refugee reason, as required.
Conclusion – refugee grounds
Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Taiwan for any refugee reason in the foreseeable future and that his fear of persecution is not well-founded.
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.5J of the Act. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Given these findings, the Tribunal has gone on to consider whether the applicant faces a real risk of significant harm if returned from Australia to Taiwan as required under Australia’s complementary protection provisions.
The Tribunal finds the applicant is a national of Taiwan (Republic of China) and that Taiwan (Republic of China) is his receiving country for complementary protection assessment purposes.
For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Taiwan now or in the foreseeable future from the authorities, community or Myanmar agents due to his involvement in protest activities in the past in Taiwan or on the basis of any future political activities; from the community due to his Myanmar origins; from a money lender and his associates; or due to severe economic hardship that would threaten his capacity to exist. It also does not accept there is a real chance that his Taiwanese residency would be revoked or that he would experience stress and anxiety amounting to serious or significant harm (for any reason). The Tribunal has accepted the applicant’s claims to have been excluded from various activities organised by the Burmese community in Taiwan after his involvement in the protest in 2007, however it is not satisfied that such exclusion amounts to serious or significant harm. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[15] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan (Republic of China).
[15] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
Having considered the applicant’s claims singularly and on a cumulative basis and for all the reasons set out above, 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 (Republic of China) there is a real risk he will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) based on 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.
Nicole Burns
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.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

p.2, B. Political Pluralism and Participation.

[2020] AATA 2146

4 June 2020

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