1704508 (Refugee) - [2020] AATA 783

1704508 (Refugee) [2020] AATA 783 (10 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704508
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Christopher Smolicz
DATE:10 January 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 January 2020 at 3:54pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – political opinion – ordinary member of political party – anti-government and anti-China protester – arrest and detention – departure while on bail – late claim of online political activity – credibility – inconsistent evidence – conduct to strengthen claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J(6), 36(2)(a), 65, 424AA, 438(1)(b)
Migration Regulations 1994 (Cth), Schedule 2
CASE
SZRTN v MIAC [2013] FCCA 583
SZRTN v MIBP [2013] FCA 1156
SZTYV v MIBP [2018] FCA 1076
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 8 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Taiwan, applied for the visa on 22 January 2016.
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) of the Act. 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) of the Act, a person has a well-founded fear of persecution if they…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1704508 (Refugee)

Details

AGLC: 1704508 (Refugee) [2020] AATA 783
Case: [2020] AATA 783
Decision Date: 10 January 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The applicant claimed to be an ordinary member of the Democratic Progressive Party (DPP) in Taiwan and an anti-government and anti-China protester. He asserted that his political activities led to his arrest and detention, and that he departed Taiwan while on bail. The AAT was required to determine the credibility of the applicant's claims, particularly regarding his alleged political opinion and protest activities, and whether these, if established, would entitle him to a protection visa.

The Tribunal found the applicant to be an unconvincing witness, describing his evidence as vague, inconsistent, and lacking in detail. While acknowledging that the applicant claimed to be a member of the DPP, the Tribunal noted his inability to provide documentary evidence of membership or detailed knowledge of the party's principles and code. The Tribunal also considered country information indicating that Taiwan has a vibrant multiparty system with peaceful transfers of power and no reports of political prisoners. Despite the applicant's claims of protest activity, the Tribunal concluded that the applicant had not established that he held a political opinion that would place him at risk of persecution.

The Tribunal affirmed the decision under review. The applicant's failure to establish a credible claim to political opinion meant he did not meet the refugee criterion under s.36(2)(a) of the Migration Act 1958 (Cth). The Tribunal also considered the complementary protection criterion under s.36(2)(aa) but, based on the lack of credible evidence regarding the applicant's alleged persecution, did not find grounds for granting the visa on this basis. The Tribunal also noted the Minister's delegate had issued a public interest non-disclosure certificate under s.438 of the Act, which it considered valid and relevant to its assessment of the material.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

He left Taiwan in October 2015 because he supported protesters who organised riots in March 2014. Consideration of claims and evidence For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal did not find that the applicant to be a credible witness. The Tribunal found the applicant’s evidence to be vague, inconsistent and lacking in detail. The Tribunal’s findings are detailed below.Political opinion The applicant said he is a political activist. He said that in Taiwan there are two political parties: the Kuomintang (KIT) which is pro-China and the Democratic Progressive Party (DPP) which supports Taiwanese independence. The applicant said he had been a member of the DPP since he was at University. The Tribunal asked the applicant if he had any documents to support that he was a member of the DPP. The applicant said he did not have any documents in Australia. The Tribunal asked the applicant to explain the process by which a person becomes a member of the DPP. The applicant said he had to swear an oath of allegiance and sign a document adopting the principles and code of the DPP. The Tribunal asked the applicant if he could provide an explanation of the principles and code of the DPP. The applicant said that the party works for the public interest and works for the welfare of the people. He could not provide any further information. The Tribunal referred the applicant to country information and noted that the political landscape in Taiwan had significantly changed since he arrived in Australia. The Tribunal has had regard to country information and finds that Taiwan’s multiparty system features vigorous competition between the two major parties, the DPP and the KMT.[3] Three peaceful transfers of power between rival parties have occurred since 2000.[4] Specifically, the Tribunal notes that in January 2016, President Tsai Ing-wen of the DPP was elected to a four-year term.[5] Smaller parties are able to function without interference and have played a significant role in both presidential and legislative contests.[6] There are no reports of political prisoners or detainees.[7][3] ‘Freedom in the World 2018 – Taiwan’, Freedom House, January 2018, p.2, B. Political Pluralism and Participation, NGED867A615 [4] ‘Freedom in the World 2018 – Taiwan’, Freedom House, January 2018, p.1, NGED867A615 [5] ‘Country Report on Human Rights Practices 2016 – Taiwan’, US Department of State, 3 March 2017, p.1, Executive Summary, OGD95BE926957 [6] ‘Freedom in the World 2018 – Taiwan’, Freedom House, January 2018, p. 2, B. Political Pluralism and Participation, NGED867A615 [7] ‘Country Reports on Human Rights Practices for 2017 – Taiwan’, US Department of State, 20 April 2018, p.6, Section 1e, OGD95BE927327 The Tribunal has had regard the applicant’s evidence and the country information and accepts that the applicant is a follower and ordinary member of the DPP which is now the ruling political party in Taiwan. Protest activity

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Material under a public interest non-disclosure certificate The Minister for Immigration (or delegate) may place restrictions on material given to the Tribunal by the Department. Section 438 of the Act permits the Minister to certify in writing that the disclosure of information is contrary to the public interest or notify the Tribunal that it was given in confidence to the Department. The Tribunal notes that the delegate of the Minister has issued a certificated pursuant to s.438(1)(b) in this matter. The certificate is dated 26 February 2019 and is in relation to documents located on file [number]. The certificate states that disclosure of the material would be contrary to the public interest because it would enable a person to ascertain the existence or identity of a confidential source of information. The Tribunal has considered the certificate and the reasons why it was issued in respect of the specified folios. The Tribunal provided the applicant with a copy of the certificate and gave him an opportunity to comment on its validity. The Tribunal is of the view that the certificate is valid and the documents subject to the certificate do possess the necessary quality of confidence required for s.438(1)(b).[1][1] SZTYV v MIBP [2018] FCA 1076 (Steward J, 20 July 2018) at [42]. The Tribunal has considered the information that is subject to the s.438 certificate. The Tribunal finds this information meets the definition of ‘non-disclosable information’ under s.5 of the Act. ‘Non-disclosable information’ as defined in s.5(1) of the Act includes information whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence and information or matters whose disclosure may be contrary to the national or public interest.[2] [2] Information which meets the definition of ‘non-disclosable information’ is explicitly exempt from the obligations in s.424A and s.424AA of the Act.