1714923 (Refugee)

1714923 (Refugee) [2017] AATA 2812 (9 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714923
COUNTRY OF REFERENCE:                  Taiwan
MEMBER:Christopher Smolicz
DATE:9 November 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 09 November 2017 at 8:52am

CATCHWORDS
Refugee – Protection visa – Taiwan – Particular social group – Transgender male – Fear of harm from criminal gangsters – State protection available – Membership of the family unit – Credibility concerns

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB (2013) 210 FCR 505
SZSHK v MIBP (2013) 138 ALD 26
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 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 [in] November 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 themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because he fears harm from criminal gangsters in Taiwan.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a transgender male. In accordance with the applicant’s request the Tribunal has referred to the applicant by the male gender throughout this decision.
The applicant gave evidence at the hearing that since he has arrived in Australia he commenced [a] therapy and identifies as a male. The applicant showed the Tribunal correspondence issued by his treating [health professional] confirming that the he has been diagnosed with [a condition]. The applicant stated that he identifies as a male but has not yet been able to legally change his gender.
The applicant declared in the Protection visa application form that he was born a female, on [date] in Taoyuan, Taiwan. He declared that he is a Taiwanese citizen. He travelled to Australia on a passport issued by the Republic of China. The Tribunal has assessed the applicant’s claims against Taiwan as the receiving country.
[In] October 2013 the applicant arrived in Australia as the holder of a [temporary] visa. The visa was valid until [October] 2014. [In] July 2014 the applicant was granted [another temporary] visa. The visa was valid until [October] 2015. [In] July 2015 the applicant departed Australia and travelled to Taiwan. He returned back to Australia [later in] July 2015.
[In] October 2015 the applicant applied for a [student] visa. The Department granted the visa [in] October 2015. The visa was valid until [December] 2016. The applicant enrolled [in two specified courses]. The applicant said he has not completed his studies in Australia.
[In] November 2016 the applicant applied for a protection visa which is subject of the current review application.
Summary of written claims
The applicant made the following brief claims in his protection visa applications.
He claims that he left Taiwan because his mother reported to the police that underworld people were lending money at high interest rates. This upset people in the Taiwanese underworld (gangsters). They came to the family home, hurt his [Relative A] and threatened his mother.
The applicant claims that on [a date in] August 2012 he was kidnapped by underworld people in Taiwan. They told his mother that if she (the mother) did not return the “proof” she had given the police they would kill both the applicant and his [Relative A]. They pointed a gun at the applicant.
The applicant escaped from the kidnappers and went to the police. The gangster boss knew that the applicant was at the police station reporting them. The gangster called the applicant’s mother and said that if the applicant wanted his [Relative A] alive he (the applicant) had to leave the police station.
The applicant claims the police co-operate with and are paid by the gangsters and they will not protect the applicant. The applicant left Taiwan to avoid the threat from these gangsters and underworld figures.
Tribunal hearing
The applicant expanded on his claims at the hearing. The applicant claimed that his mother owned [number] apartments in Taiwan. She became aware that one apartment was being used by gangsters for running an illegal gambling syndicate and money lending activities.
His mother had difficulty evicting the tenants. She had a key to the apartment and took a document from the gangsters which was list of all the debtors and gave it to the police. The applicant claims that on [a date in] August 2012 a disturbance occurred and the gangsters demanded the return of the document. The police were called out. The applicant said that his [Relative A] took video footage on his phone of the incident. The applicant was able to show the Tribunal at the hearing video recorded footage of the police attending at an apartment. The applicant claims the footage shows the gangster looking for the document that was taken by his mother. The Tribunal notes that the footage was in Taiwanese and it is unclear what was being said at the time.
The applicant said that the following day ([in] August 2012) the gangsters kidnapped him and two of his [Relatives A]. He claims they were taken to another apartment and questioned for about three hours. The applicant claims he was injured by the gangsters. The gangsters demanded that the applicant’s mother return the document. The gangsters telephoned the applicant’s mother and threatened her. They claim the document was worth $[amount] TWD in loans. The applicant said that the gangsters were not aware that his mother had given the document to the police.
The Tribunal asked the applicant if he had any documents to support his claims. The applicant said that the gangsters were charged with criminal offences by the police in Taiwan. The applicant provided the Tribunal with a document which he claims is the judgment of a Taiwanese court sentencing the gangsters to jail. He claims the gangsters could avoid actual jail time because in Taiwan it is possible to pay money and avoid actual jail time.
The Tribunal explained to the applicant that the policy of the Tribunal requires applicants to provide the Tribunal with documents translated into the English language. The Tribunal noted that an untranslated document was of limited assistance and the Tribunal. The applicant maintained that he tried to get the document translated but it was not possible because it was complicated.
The Tribunal asked the applicant if he was able to identify his name in the court document and show it to the interpreter at the hearing as verification. The applicant said that his name does not appear in the court document and all the victims were given codes “A1”, “A2” and “A3”. The applicant said that he is identified by the code “[specified code]”. The applicant was able to refer the interpreter to the part of the judgment which mentioned the kidnapping date ([in] August 2012) and his injuries.
The Tribunal asked the applicant why he did not provide the judgement with his protection visa application. The applicant claimed that the proceedings were before the court from 2013 to 2016. His [Relative A] posted a copy of the judgement to him in Australia [in] October 2016.
The Tribunal asked the applicant if he had a copy of his statement that was given to the police. The applicant said he did not have a statement. The Tribunal asked the applicant if he gave evidence at the trial. The applicant said he did not. The Tribunal noted that he was in Australia during the court proceedings. The applicant maintained that the courts are different in Taiwan.
The Tribunal noted that the police had taken action against the gangsters and the matter had proceeded to trial and the gangsters were sentenced to jail. The Tribunal noted that it would appear from his evidence that there was effective state protection for him in Taiwan and that the criminals were brought to justice.
The Tribunal discussed with the applicant country information referred to in the attachment to this decision regarding the police and judiciary in Taiwan. The Tribunal noted that Taiwan has an effective police force that takes action against criminals. The applicant maintained that under Taiwanese law the gangsters were able to pay money [bond] to avoid spending actual time in jail. The Tribunal noted that according to his evidence there was police protection for him. The applicant said that there was police protection only during the court proceedings. The applicant said that the police were corrupt and worked with the gangsters. Having considered the information and the applicant’s profile the Tribunal finds there is no evidence to indicate that the State would be unable to or unwilling to protect the applicant in Taiwan.
The applicant said he returned to Taiwan in July 2015 and went to visit his mother in hospital. The applicant claims the gangsters threatened to break his legs. He claims that he observed the gangsters near his mother’s room. He claims the gangsters did not see him and he fled and returned to Australia. The Tribunal told the applicant it had difficulty accepting his evidence that gangsters were waiting near his mother’s hospital room on the day he returned to Taiwan. The Tribunal told the applicant it seems inconsistent that the gangsters would threaten to break his legs when he claims they did not see him at the hospital. The applicant said the gangsters told his mother they would harm him. The Tribunal told the applicant it found it difficult to accept that gangsters would visit his mother in hospital during the court proceeding in which his mother was involved. The applicant maintained that things were different in Taiwan.
The Tribunal noted that his [Relatives A] have continued to live in Taiwan and nothing has happened to them. The applicant maintained that the [Relatives A] live at different addresses and do not work so they are able to keep a low profile. He said that his mother has since died from [a medical condition]. The Tribunal finds that there is no evidence that the gangsters have threatened or harmed the applicant since they were arrested and charged and brought to trial.
The Tribunal asked the applicant why he did not apply for protection when he first arrived in Australia. The applicant said that the court proceedings were still ongoing in 2013. The applicant thought he would disappear for a few years until the matter was finished. The Tribunal noted that the gangsters were charged, prosecuted and found guilty. The applicant maintained that they were out of jail.
The Tribunal noted that Taiwan had a population of about 23 million people and he could relocate to another part of Taiwan to avoid the gangsters. The applicant said that in Taiwan you have to register your address with the authorities, lodge tax documents and the gangsters could find him.
The Tribunal discussed country information with the applicant which states that laws exist in Taiwan to prevent discrimination against transgender people. The applicant agreed that laws existed to prevent discrimination but claimed that when he was at work customers would be rude and judgmental because of his appearance. The Tribunal asked the applicant if his transgender status had any relevance to his claims for protection. The applicant said that his transgender status had nothing to do with his claim for protection.
Having considered the applicant’s evidence the Tribunal has proceeded to assess the applicant’s claim for protection only in relation to his fear of harm from criminal gangsters in Taiwan.
Findings
The applicant claims that in 2012 he was involved in a conflict with gangsters, that he was kidnapped, injured and that the gangsters had threatened to kill him. He claims the police were involved and the gangsters were arrested and the matter went to trial. He provided a document in the Taiwanese language which he claims to be a judgment of the court in Taiwan as evidence that in October 2016 the gangsters were prosecuted, convicted and sentenced to jail. He claims the gangsters were able to pay money (a bond) and were released from jail. He claims he was a party to the proceedings and was identified by the pseudonym “[code]”. He returned to Taiwan in July 2015 and saw the gangsters visiting his mother in hospital. He claims they told his mother that they would cause him serious injury. He claims that the gangsters are out of jail and have connection with the police and will locate and kill or seriously injure him if he returns to Taiwan.
The Tribunal has the following concerns about the applicant’s evidence.
The applicant did not mention the criminal proceedings in his original claims for protection. He provided an untranslated document purporting to be a judgment issued by the courts in Taiwan. The document was produced on the morning of the hearing together with video footage of an altercation which he claims was taken on [a date in] August 2012. He has provided no police reports or statements which should be available if he and his family were victims of an assault and kidnapping and the matter went to court. He claims he did not attend court and was not present in Taiwan during the court proceedings from 2013 to 2016 which seems unusual given that he claims to be one of the victims.
The Tribunal is also concerned why the applicant would return to Taiwan in July 2015 if he genuinely feared for his life. Its also seems very unusual that the gangsters would be visiting the applicant’s mother in hospital and threatening to harm him during the court proceedings in which his mother was witness. It also seems to be an unusual coincidence that the gangsters would happen to be visiting the applicant’s mother on the day he happened to be in Taiwan almost one and a half years after he departed Taiwan and travelled to Australia.
The Tribunal is also concerned that the applicant would wait until November 2016 before he applied for a protection visa given his claim that he travelled to Australia in October 2013 to escape persecution. The Tribunal also finds the applicant’s explanation that he waited until the outcome of the trial to lodge a protection visa unconvincing. The Tribunal would have expected the applicant to lodge a protection visa application as soon as he arrived in Australia given that there was no certainty that the gangsters would be found guilty.
The Tribunal accepts that there is country information of some corruption within the police force in Taiwan, however, considering the applicant’s claims the Tribunal finds that the applicant claims the police are working with the gangsters inconsistent in light of his evidence that the police attended at his mother’s home in August 2012, arrested and charged the gangsters and brought them before the court in Taiwan.
The Tribunals also finds applicant’s claims the gangsters have been released from jail and will kill him if he returns to Taiwan inconsistent with his evidence that his two [Relatives A], who were also involved in the legal proceedings, have not faced any harm from the gangsters. As stated above there is no evidence that the applicant has been threatened or harmed since the intervention of the police and the arrest of the gangsters in 2012.
On the other hand in assessing the applicant’s claims the Tribunal finds the applicant was able to provide a level of detail that satisfies the Tribunal that he was a victim of criminal gangsters in 2012. The Tribunal is also prepared to accept that the Taiwanese court document is genuine. The Tribunal is also prepared to accept that the gangsters were arrested, charged, brought to trial, convicted and sentenced to jail. The Tribunal makes these finding having considered the applicant’s evidence at the hearing noting that he was able to refer to parts of the Taiwanese judgment to corroborate his claims.
The Tribunal also finds that the fact the applicant did not apply for protection soon after arriving in Australia and voluntarily returned to Taiwan in July 2015 is relevant in assessing the applicant’s claim that he fears the gangsters in Taiwan will harm him.

The Tribunal does not accept that the gangsters were present at the hospital in July 2015 when he returned to Taiwan to visit his mother. The Tribunal does not accept the gangsters spoke to the applicant’s mother and threatened to harm the applicant. This evidence did not form part of his original statement of claim. The Tribunal finds the applicant exaggerated this aspect of his evidence to bolster his claims.
Well-founded fear of persecution
Having regard to the Tribunal’s findings above, the next issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution in Taiwan.
The Tribunal finds that the harm feared by the applicant is for the reason of criminal conduct engaged by gangsters and is not for the reason of race, religion, nationality or political opinion. Although not articulated by the applicant at the hearing it may be implied that he is claiming that he fears of persecution because of his membership of his family (mother and [Relatives A]) who were targeted by the criminals in Taiwan and were named in the criminal proceedings detailed above.
It is well established that a family is capable of constituting a particular social group within the meaning of the Convention. However, this is subject to s.5K of the Act, which provides that the following matters must be disregarded in determining whether a person has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of the 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.
Therefore, a person who fears persecution because he or she is a relative of a person targeted for a reason not mentioned in s.5J(1)(a) does not fall within the grounds for persecution covered by s.5J(1)(a).
The Tribunal finds the applicant’s mother and [Relatives A] were pursued for criminal reasons. There is no information to suggest the mother and [Relative A] were targeted for any of the reasons mentioned in s.5J(1)(a).
The Tribunal therefore finds the applicant’s fear of persecution based on his membership of the particular social group of his family must be disregarded.
As discussed with the applicant at hearing, the Tribunal finds that the Taiwanese authorities have taken steps to protect him in the past and are able to offer him protection against any harm he may encounter from the criminal gangsters if he returns to Taiwan in the reasonably foreseeable future.
The Tribunal has had regard to the country information detailed in the annexure to this decision and further finds that there is no evidence that the Taiwanese authorities namely the National Police Administration (NPA) would withhold protection to the applicant because he is transgender or for any of the reasons mentioned in s.5J(1)(a) of the Act.
The Tribunal finds the applicant does not have a well-founded fear of persecution in Taiwan.
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).
Complementary Protection Criteria
The next question for the Tribunal to address is whether there are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[1]
[1] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323, 13 December 2013).
The Tribunal notes that the Full Federal Court has stated that an applicant’s credibility will be plainly relevant to the question of substantial grounds for believing there is a real risk.[2]
[2] SZSHK v MIBP (2013) 138 ALD 26 at [31].
The types of harm that will amount to ‘significant harm’ are exhaustively defined by s.36(2A).[3]
[3] A person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Section 36(2B) qualifies s.36(2)(aa) by setting out three circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm. The circumstances are:
·where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;
·where the applicant 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
·the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Protection from an authority
The Tribunal has considered whether the applicant could obtain protection from NPA of Taiwan such that there would not be a real risk that he will suffer significant harm.
As discussed above the applicant fears harm from criminal gangsters. The applicant claims the criminal gangsters will physically harm him because his mother reported them to the police and as a consequence they have been charged, convicted and punished for their criminal conduct. The applicant claims that the police will not be able to offer protection to him because they are corrupt and work with the criminal gangsters.
The inquiry under s.36(2B) is into the particular circumstances that pertain to the applicant, and need to be considered together with the assessment of ‘real risk’ in s.36(2)(aa).[4] In MIAC v MZYYL the Full Federal Court also held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[5]
[4] In MIAC v MZYYL (2012) 207 FCR 211 at [36] the Court stated that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).
[5] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.
Country information referred to in the delegate’s decision confirms that Taiwan has an effective and well-regarded NPA that are actively dealing with organised crime and gang-related activities. The NPA’s Criminal Investigation Bureau (CIB) has an Anti-Organized Crime Division which is in charge of the implementation of a number of dedicated operations targeting organized gangs and criminal syndicates.[6] The Tribunal notes that the delegate’s decision refers to a number of recent media reports which illustrate action taken by the Taiwanese authorities in combating organised crime.[7] Country information also confirms that the Organized Crime Prevention Act has been instrumental in combatting organized crime.[8] Country information confirms that although there remains some corruption in the judicial system, trials are considered to be fair and the judicial system is independent and trials are generally fair.
[6] Anti-Organized Crime Affairs’ 2015, 刑事警察局Criminal Investigation Bureau website, last updated 25 May < <CISEC96CF14279>
[7] See Pan J 2016, ‘Alleged gang members arrested’, Taipei Times, 7 January < <CX6A26A6E707
[8] ‘Is Taiwan’s Organized Crime Receding or Going Deeper Underground?’, Tim Ferry, American Chamber of Commerce in Taipei, 24 May 2016, CIS38A80122174
The Tribunal finds that the NPA did attend the applicant’s mother’s home in August 2012 and the gangsters were arrested. The Tribunal notes that the gangsters were charged and convicted and sentenced to jail. The Tribunal notes that the applicant gave evidence at the hearing that he was offered police protection through the trial process. The Tribunal finds this evidence is inconsistent with the applicant’s claim that the police are corrupt and were working with the gangsters who kidnaped and threatened him in 2012.
The Tribunal does not accept there is a real risk the gangsters will harm the applicant because he claims they have now been released from jail. As discussed with the applicant at the hearing the gangsters have not harmed his [Relatives A] or his mother. The Tribunal finds that there is no evidence the gangsters are seeking to find him.
The Tribunal notes that the applicant voluntarily decided to return to Taiwan in July 2015. The Tribunal does not accept the applicant’s claims that he observed the gangsters visiting his mother at the hospital and that they threatened to harm him. As stated above, this evidence did not form part of his statement of claim and the Tribunal has finds the applicant manufactured this aspect of his claims. The Tribunal finds the applicant did not encounter any problems from the gangsters when he returned to Taiwan in 2015.
The Tribunal notes that the applicant has been living in Australia since 2013. He did not take part in any of the criminal proceedings in Taiwan. The Tribunal finds that the applicant has not come to the attention of the gangsters since he departed Taiwan and there is no evidence to suggest the gangsters are waiting for the applicant when he returns.
The Tribunal also finds that that the criminal gangsters have now been convicted. The Tribunal finds there is an expectation that they will refrain from future criminal activity given they have already been punished, brought to justice and come to the attention of the authorities.
Although not raised by the applicant at the hearing, the Tribunal also finds there is no evidence to suggest that the applicant could not obtain protection from the authorities in the future because he is a transgender person or because he is a past victim of crime.
The Tribunal notes that the gangsters were charged because his mother evicted them and gave evidence to the police leading to their arrest. The Tribunal notes that the applicant’s mother has since passed away and the matter has been finalised by the courts.
The Tribunal has considered the country information and the applicant’s personal circumstances and is satisfied that the applicant could obtain protection from the NPA such that there would not be a real risk he will suffer significant harm if he was to return to Taiwan in the reasonably foreseeable future.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
Member

ATTACHMENT -
Country Information
The Tribunal has had regard to the following country information prepared by the Department’s Country of Origin Information Service Section (COISS) in assessing the applicant’s claims:[9]
[9] DIBP, Common Claims Republic of China (Taiwan) COISS effective from 1 June 2017 CRF00C22F72
Police force
Operating within a low-crime environment, the National Police Administration (NPA) of the Ministry of Interior is effective and well-regarded. The NPA’s main missions are to carry out police and law enforcement in Taiwan, maintain public order, uphold the safety of its citizens and society, prevent hazards and to promote the welfare of its citizens. In 2016, an independent survey showed rising levels of confidence in citizen satisfaction with the police, reaching over 73% that year. There were criticisms that the police had used undue force to remove student protesters from the Executive Yuan in 2014 and a subsequent occupation of the Ministry of Education in 2015 was more restrained. The constitution prohibits arbitrary arrest and detention and this is generally observed.
Crime
Taiwan has a low crime rate and one of the lowest violent crime rates worldwide. There is extensive CCTV coverage throughout Taiwan, which plays a significant role in deterring the majority of criminal activity, as the overall crime rate is 1.3 per cent, and overall violent crime in Taiwan is at a worldwide low of just 0.01 per cent. In the first 11 months of 2016 about 70 per cent of nearly 7,000 economic crime cases involved the infringement of intellectual property rights (IPRs).
….
Loan sharks
Major operations against criminal gangs involved in loan shark and other associated activities are carried out. Violations of domestic financial rules, such as loan shark ring operations or underground economic activity, totalled 947 cases or 19 per cent of total economic crimes from January to August 2016, causing a loss of NT$6.3 billion, or 36.5 per cent of total losses from economic crimes. In May 2015 four police officers along with other suspects alleged to have been involved in supporting a major loan shark were summoned. A large raid was carried out in December 2015 with 142 suspects detained. Twenty people in a New Taipei gang were arrested in August 2016 and bats, firearms and bullets were confiscated.
Judicial system
Some corruption remains in the judicial system although trials are considered to be fair. The judiciary is independent and trials are generally fair. There is an independent and impartial judiciary for civil matters. There is some corruption in the system, although authorities have made efforts to eliminate corruption and reduce political influence in the judiciary. All defendants are presumed innocent until proven guilty and have the right to an attorney.
Corruption
Corruption in Taiwan is less pervasive than in the past however issues remain with close connections between politicians and businesspeople. Corruption is significantly less pervasive than in the past, but is still a problem. Politics and big business are closely intertwined. Taiwan received a score of 61 out of 100 in Transparency International’s ‘Corruption Perceptions Index 2016’, and a ranking of 31 out of 176. Corruption laws are very seriously enforced and there is a high degree of sensitivity to political corruption by media and the public. There is a low reportage of individuals having directly experienced corruption and despite room for improved co-ordination, a range of agencies have been established to prosecute and minimise corruption.
Corruption is being targeted through legislation, however land expropriation, money laundering and corrupt business practices are still linked with officials and political parties. Taiwan has implemented laws and regulations to combat corruption and the Corruption Punishment Statute and Criminal Code contain specific penalties for corrupt activities, including maximum jail sentences of life in prison and a maximum fine of up to TWD 100 million (USD 3.3 million). Illegal land expropriation, especially the corrupt ‘privatisation’ of public land to the detriment of local residents, is a serious matter in Taiwan’s local politics. A high profile money laundering case involving the Mega International Commercial Bank is expected to result in legislation criminalising the financing of terrorist operations and bringing local rules into line with international best practice. The authorities have jailed officials from the rail administration accused of accepting sexual favours in exchange for agreeing to contracts worth more than $31 million over six years. The DPP has also begun to target the KMT, introducing a bill specifically targeting illegally acquired assets dating back to 1945.
…
Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI)
Legal prohibitions exist against employment discrimination, however many instances of discrimination are not reported due to social stigma. Taiwanese law prohibits discrimination in employment based on sexual orientation, and violence against lesbian, gay, bisexual and transgender people is adequately addressed by police. The law stipulates that employers cannot discriminate against job seekers on the basis of sexual orientation, and schools cannot discriminate against students on the basis of their gender temperament, gender identity or sexual orientation. Activists said that discrimination against LGBTI individuals was more widespread than suggested by the number of court cases due to the reluctance of victims to lodge formal complaints. Reported instances of violence against LGBTI individuals were rare and the police response was adequate. Advocacy groups were unable to collect reliable statistics on violence targeting LGBTI individuals as the law does not define hate crime so police do not use that category to disaggregate cases.
In May 2017 the Judicial Yuan declared that same-sex couples have the right to marry. On 24 May 2017 Taiwan’s constitutional court, the Judicial Yuan, declared that same-sex couples have the right to legally marry, and gave two years for legal amendments to allow same-sex marriage. The ruling, the first in the Asian region, described sexual orientation as ‘an immutable characteristic that is resistant to change’. The Legislative Yuan’s judicial committee has passed amendments to the Civil Code, a step towards legalising same-sex marriage. The existing same-sex couples register has been extended to 10 municipalities and counties.
The USDOS Taiwan Human Rights Report for 2016[10] states that the National Police Administration (NPA) of the Ministry of the Interior has administrative jurisdiction over all police units. Civilian authorities maintained effective control over NPA and authorities had effective mechanisms to investigate and punish abuse and corruption. The law provides criminal penalties for corruption by officials and authorities generally implemented the law effectively.
[10]

"Taiwan - Country Report on Human Rights Practices 2015", US Department of State, 13 April 2016, OGD95BE926327
The Tribunal has had regard to media reports which confirm that the NPA have carried out national wide operations on “loan sharking”. The NPA referred victims /debtors to telephone numbers when faced by gangsters who use violence to recover money.[11]
[11] Taiwan Quick Take: Cops bust loan sharks Taipei Times 15 August 2006
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 2812

9 November 2017

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