1703530 (Refugee)

[2020] AATA 4233

1703530 (Refugee) [2020] AATA 4233 (10 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703530

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         10 July 2020 at 12:10 pm (WA time)

DATE OF WRITTEN RECORD:                24 July 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 24 July 2020 at 2:50pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – workplace gender discrimination – credibility – delay in applying for protection and period as unlawful non-citizen – inconsistent evidence – late claim of domestic and sexual abuse – paid another person to complete and lodge application – unprofessional conduct by agent – adequate state protection available – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5LA, 36, 104, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788

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 dependants.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 February 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 10 July 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. A corrected transcript of the decision and reasons is attached to this statement.

   DECISION

4. The Tribunal affirms the decision under review.

   Dr Colin Huntly
   Member

   
   

   -Corrected Transcript-

   ORAL DECISION OF MEMBER HUNTLY  [11.12 am]

5. MEMBER:  This is an oral decision with reasons delivered to the applicant in person by Microsoft Teams.

   Introduction:

6. the criteria for a protection visa are set out in section 36 of the Act and schedule 2 to the regulations.  An applicant must be a person in respect of whom Australia has protection obligations, under the refugee criteria or on complimentary protection grounds.  Where relevant, I have had regard to the policy guidelines prepared by the Department relating to refugee law and complimentary protection, together with any country information assessment prepared by the Department of Foreign Affair and Trade as is required by ministerial direction number 84.  I note that DFAT has not issued a country information assessment for Taiwan.  However, I have had regard to the 2019 United States State Department human rights practices report for Taiwan, particularly at pages 11 to 12 relating to women, and also the 2020 Freedom House Freedom in the World report for Taiwan, particularly relating to the rule of law.  I have discussed these sources of country information with the applicant at the hearing. 

   CoVid-19 emergency

7. I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020.  I have also had regard to President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.  In particular:

   That ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1]

   That ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2]

   [1]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).

   [2]At [8.1].

   Credibility

8. Before looking at my findings I note that on questions of credit I need to give benefit of the doubt, but it is for an applicant to make their own case in as much detail as possible.  Greater weight may be given to one piece of evidence against another and there is no rule that I must hold a positive state of disbelief before making adverse assessments.  I also note that a decision-maker is entitled to consider whether or not an applicant subjectively holds a genuine fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held objectively by an applicant in the context of refugee protection.

9. Consistent with the various decisions commencing with those in the matter of Iyer,[3] if a decision-maker finds on the evidence that an applicant does not subjectively hold a genuine fear of persecution there is no need to consider whether or not there is an objective basis for a claim or indeed whether aspects of the claim are satisfied.  I also note that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible.

   [3]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]; affirmed in Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also Firuzibakhsh v MIMA [2002] FCA 982 (Mansfield J, 9 August 2002) at [56]; SDAQ v MIMIA (2003) 129 FCR 137 at [19]; SZDGB v MIAC [2006] FMCA 341 (Driver FM, 24 March 2006) at [19]; SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48]; SZSSQ v MIBP [2013] FCCA 1762 (Judge Nicholls, 31 October 2013) at [38] and [48].

10. In this respect I have had regard to Migration and Refugee Division ‘Guidelines on the assessment of credibility’ (July 2015) (the Guidelines), which provides at [8]:

    It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.

11. I also note that the same source, at [13] provides that:

    In relation to protection visa applications made on or after 14 April 2015, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the Tribunal are satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence.  This refers to the requirements of section 423A of the Act.

12. Further, at [17]-[19] of the Guidelines it cautions that:

    Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case.  The Tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the Tribunal.  A Member should maintain and be seen to have an open mind when conducting a hearing.  There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend.  An applicant may be plainly confronted with matters, which bear adversely on his or her credit or which brings his or her account into question.

13. With respect to contradictions, inconsistencies and omissions, [27]-[28] states:

    Contradictions, inconsistencies and omissions, may arise in the evidence before the Tribunal.  The Tribunal will consider all the evidence before it, assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.

    New claims and evidence

14. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  On this view the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to in fact establish or assist in establishing the claim. 

15. This is consistent with the well-settled proposition that it is for an applicant to make their own case.  Further, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made.

16. Two obligations here are particularly relevant: the ongoing requirement under s.104 of the Act for an applicant to ensure their relevant details are correct and to change any incorrect information at the first reasonable opportunity.

17. Second, regarding protection applications, s.423A of the Act requires the Tribunal to draw an adverse inference about the credibility of certain of an applicant’s claims or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.  In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation about why the claim was not raised or evidence not presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence. 

18. Applicants, therefore, who do not present all claims and evidence to the primary decision-maker must have a reasonable explanation for not doing so.

    Identity and receiving country:

19. According to the applicant’s movement record, she arrived in Australia [in] February 2014, travelling on a [working holiday visa].  She departed Australia briefly [in] September 2014 and returned [later in] September 2014 on the same working holiday visa. 

20. The applicant’s initial working holiday visa expired [in] February 2015, after which time she became an unlawful non-citizen in this country. 

21. 12 months later, on 18 February 2016, the applicant applied for a protection visa. 

22. The applicant claims to be a citizen of the Republic of China (Taiwan).  She provided a copy of her passport to the Department with her application.  There is no reason for me to suspect that this passport is false.  I therefore find that the applicant is a citizen of Taiwan, which is her receiving country for the purposes of the Refugee and Complimentary Protection Assessments. 

23. Given my findings that follow, it has not been necessary for me to make findings relating to section 36(3) of the Act relating to third country protection.

    Background:

24. A delegate of the Minister refused to grant the applicant’s application for protection on 13 February 2017.  The applicant applies to the Tribunal for a review of that decision. 

25. The delegate found (at pp.14-16), that the applicant’s written claims lacked credibility on the basis of delay and because these claims were not consistent with available country information.  In the alternative, the delegate found that even if the applicant’s claims were made out, Taiwan had an appropriate criminal law, reasonably professional police force, and an independent judiciary for the purposes of assessing the availability of state protection, and that this protection was both appropriately durable and accessible for persons in the applicant’s position. 

26. On this basis, the delegate found that the applicant was not owed protection in Australia under s.36(2)(a) of the Act. 

27. The delegate’s consideration of the alternative complimentary protection criterion is expressed as the delegate’s lack of satisfaction (based on their previous assessment that the applicant’s claims were not credible and otherwise were not consistent with available country information).  On that basis, the delegate found that the applicant was not owed protection in Australia pursuant to s.36(2)(aa) of the Act. 

    Alternative hearing modalities

28. I have exercised my discretion to hold the hearings with the applicant remotely, firstly; by means of telephone hearings, and on the final occasion by MS Teams video.  It is appropriate for me to make a comment about this. 

29. These hearings were held utilising electronic hearing modalities during the COVID-19 pandemic.  I determined in each case that it was reasonable to hold the hearings by these means, having had regard to the nature of the matter; the statutory requirements; the President’s directions; and, the individual circumstances of the applicant. 

30. Originally it was planned for us to hold the hearing by means of the normal video conferencing format as at the time the matter was constituted to me, the relevant information technology was available to facilitate the hearing this way.  However, due to social distancing constraints, this became impossible. 

31. The first two hearings were adjourned on the basis of various procedural fairness considerations. 

32. In consultation with the applicant and her representative, the final hearing was arranged to allow for a hearing using the MS Teams video format. 

33. In making these alternative arrangements, I have had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and after considering the effective delay to the matter if the hearing was not conducted by electronic means. 

34. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the formats that have been utilised.  I have also been able to interact with the applicant and her representative appropriately throughout the proceedings. 

35. The applicant appeared before the Tribunal on four occasions: telephonically on 24 March 2020, 16 April 2020, 5 May 2020; and, via MS Teams on 10 July 2020, to give evidence and present arguments.  I note for the record that the second hearing scheduled for 16 April had to be abandoned at that time due to telephone connection issues. 

36. The applicant was represented in this application at all times by a registered migration agent.  The Tribunal has been assisted in the hearings by the services of an interpreter fluent in both English and Mandarin languages. 

    Claims

    First hearing.

37. At the first hearing with the Tribunal on 24 March, I explained to you what documents I had in my possession.  At the first hearing, I read to you a summary of your claims for protection from the delegate’s decision record (at p.2, [5]), in a series of dot points as follows:

    ·     The applicant claims she left Taiwan because there are more female than male workers in Taiwan, and they have suffered discrimination in the workplace because of their gender;

    ·     The applicant claims that the employer treated her unequally after she got married;

    ·     The applicant claims that Taiwanese women need to work an average of 65 days more than men;

    ·     As a result of the gender inequality, the applicant has been living under harsh conditions and mental distress;

    ·     If the applicant returns to Taiwan, the situation would be the same and she would live in hardship and be discriminated against as a woman.  She would be hurt or killed if she borrowed money to survive;

    ·     The applicant did not seek help as it is a socio-economic matter;

    ·     The applicant did not try to move to another part of the country because the matter is a socio-economic one.

38. At the first hearing, you agreed that this was a fair and accurate summary of your claims for protection.  I then asked you if there was any information in the documents I had that should be changed.  You said ‘No’.  You said that you had experienced domestic violence and threats from a former partner in Taiwan.  I pointed out to you that this was substantially different from your previous claims.  You expressed some confusion and said that you had relied on a friend to help you lodge your application for protection.  I then asked you if you wanted to add anything further to your claims for protection.  You said ‘No’.  I then asked you if you were happy for me to proceed on the basis of that information, and you said ‘Yes’. 

39. I pointed out to you that your application raised significant issues about apparent delay, and that by making fresh claims and giving new evidence, this raised issues under s.423A of the Act.  You also discussed the late appointment of your agent, notice of which the Tribunal only received eight days before the first hearing.  I expressed some surprise to you that you had not had an opportunity to consult adequately with your representative, given that your original application was lodged in 2016. 

    Second hearing

40. At the start of the second hearing with the Tribunal, it became apparent that the hearing could not proceed by telephone.  Your matter was relisted for another hearing. 

    Third hearing

41. Immediately before the third hearing, you provided me with documents referring to previous domestic and sexual abuse in Taiwan between 2009 and 2012.  At the start of the third hearing with the Tribunal, I reminded you of your answers to my questions at the first hearing.  I noted the documents I had received but indicated to you that I was surprised there were no detailed submissions. 

42. We briefly discussed your new evidence about having been assaulted by a person you described as a boyfriend in Taiwan, and its inconsistency with earlier claims that you had made.  I again raised my concerns with you about this, and your agent, and highlighted your responsibility under s.104, s.5AAA and s.423A of the Act. 

43. Nothing further was received from you before the fourth and final hearing. 

    Fourth hearing

44. At the fourth and final hearing, I pointed out to you some difficulties I had with the documents that you had presented. 

45. I noted that the July 2011 psychiatric treatment report you submitted appeared to have been altered in the English language after it had been initially prepared.  Specifically, the English hand-written words, ‘being sexually harassment by brother-in-law, emotional burst out’, appear to be directly inconsistent with the patient statement section of the document (written in Chinese script but translated in the attached certificate) that your family said you ‘became less talkative’.  Further, the information recorded in English in a blank space on the form appeared not to relate to the heading above it. 

46. I also noted that there was a report from a domestic violence and sexual assault prevention centre from January 2013. 

47. I put my concerns to you and asked for your response.  You asserted that the 2011 document had not been tampered with.  I asked if you could account for the way in which it appeared to have had later English additions added to it, and I explained to you that I found your explanation to lack credibility. 

48. I also asked for you to account for your verbal evidence being different to what you had written on 6 April 2020 to me.  Your verbal sworn evidence at the hearing to me was that you had reported assaults to police.  I pointed out to you that this was directly inconsistent with what you had written to me in your signed statement dated 6 April 2020.  I explained to you that I found your evidence not to be consistent, and to lack credibility. 

49. I did not find your responses to be convincing.  Indeed, I explained to you at the hearing that I found your evidence to be variable, confusing and lacking in credibility.  I asked you why you waited so long to raise these new issues, not having raised them between 2016, when you applied for protection, and March 2020, and even then not in any detail until July 2020.  I did not find your explanation for the delay to be reasonable, given that you now assert that they have always been at the heart of your claims for protection. 

50. I note that you assert that the Tribunal has some responsibility for identifying this information and obtaining court documents from Taiwan, but this misconceives and misstates the responsibility of applicants to state their own case in as much detail as possible at the first reasonable opportunity as explained in s.5AAA of the Act. 

51. I also note that after arriving here in February 2014, you left the country on holiday and then came back for a brief period before your work visa expired, and then remained in this country for more than a year unlawfully without seeking any assistance to regularise your migration status. 

1. It is clear from your movement record that you are an informed user of the Australian migration system, and your subsequent explanations for why you did not apply for assistance or reach out of try and find someone to help you connect with the Department until you applied for protection are lacking in credibility. 

2. Late in proceedings, during the fourth hearing, it became apparent that you have three children in Taiwan; that you were married to a man from whom you are now divorced; your father and mother own and operate four [businesses] in that country.  When I noted that you had made no mention of ever being married in your original application for protection and declared in the same document that you have no children, you pointed out that you did not complete the application form. 

3. When I showed the form to you and asked you to confirm whether you had signed the form, you say that you did not even sign the form.  Rather, you paid $1600 to someone to complete the form and lodge it for you. 

4. I pointed out to you that it reflected poorly on your credibility, and the credibility of your claims, that you would apply for a protection visa in Australia under these circumstances.  In response, you stated that everything that you told me today was true.

5. I discussed with you the country information relating to the availability of state protection in Taiwan that I have referred to in my initial remarks. 

6. In response, you said that essentially you had come here to work to support your children; that your relationship with your former husband was unhappy; and, that you had experienced some harassment from him in that country before coming to Australia.  I asked your agent for submissions on the country information that I had surveyed, and he provided me with no submissions. 

   Unprofessional Migration Agent Conduct

7. I asked your representative (a registered migration agent) if he had full knowledge of these facts, and if so, when he obtained them.  Your agent indicated that you had disclosed these matters to him before your first hearing with the Tribunal. 

8. It does not reflect well on your agent that he has made no submissions to the Tribunal on any of these matters without my direct questioning, and then on the final occasion of your hearings. 

   Findings

9. You have not satisfactorily explained the delay you took in making your original application for protection in February 2016. 

10. As discussed, I find that your explanations for presenting late claims and evidence during my review are unsatisfactory.  Therefore, I draw the adverse inference relating to the credibility of those late claims and evidence required of me by s.423A of the Act. 

11. I note that by your own evidence at the final hearing, you have been content to have a materially false and misleading application for a visa lodged on your behalf in the first instance, and then relied that as the basis for an application for review before this Tribunal. 

12. It has only been after consistent questioning about matters of fact that should have been known to you well before applying for protection that, at the fourth hearing with you, you disclosed anything approximating the true facts of your life and the nature of your potential claims for protection in this country. 

13. Taking all of this together, I find that the ambulatory nature of your claims suggests to me that your original claims were simply fabricated by another person on your behalf, for a fee, and that your more recent claims are either embellished materially, or mere fabrication based on historical artefacts that predate your departure from Taiwan by a considerable period of time. 

14. I find that your responses to my questions relating to country information do not engage meaningfully with that country information, and your evidence is inconsistent in important respects with available country information.  I prefer to rely on available credible country information when resolving these inconsistencies. 

15. It follows that I find your claims for protection are unsatisfactory and lacking in credibility in material respects.  I also find that your subsequent evidence relating to these claims has been largely unsatisfactory, as discussed above.  Despite having explained my concerns with you about the core aspects of your claims lacking credibility over several hearings, you have been unable to provide adequate explanation. 

16. Given that I find your claims and the supporting evidence are not credible in material respects, I find that your claims are not genuinely subjectively held by you as a basis for a well-founded fear of harm in Taiwan. 

17. I also raised my concerns with you about your delay in seeking protection in Australia for a period of 12 months after your initial visa expired.  It is reasonable to expect that someone with a genuinely held, well-founded fear of persecution or significant harm to clarify their migration status at the first reasonable opportunity.  I find that your delay in seeking protection for an extended period was unreasonable in all the circumstances, and this further undermines the credibility of your claims for protection. 

18. On the basis of the concerns I have raised above and the findings I have already made, I find that you are not a person in respect of whom Australia owes protection for the purposes of s.32(2)(a) of the Act. 

19. The real risk test imposes the same standards as the real chance test.  For the reasons discussed above, I find that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Taiwan, that you would suffer significant harm from any person for any reason, now or in the reasonably foreseeable future. 

20. Applying the ‘what-if-I’m-wrong’ test, I note that the available country information suggests that you would be able to access adequate and durable state protection for the purposes of s.5LA of the Act, in any event. 

    Conclusion

21. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations at s.36(2)(a) of the Act.  I have also considered the alternative criterion, and I am not satisfied the applicant is a person in respect of whom Australia has protection obligations at s.36(2)(aa) of the Act.  

22. There is no suggestion that the applicant would satisfy the criteria in s.36(2) of the Act relating to membership of the same family unit. 

    Decision

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

    END OF ORAL DECISION  [11.59 am]