1715509 (Refugee)

1715509 (Refugee) [2023] AATA 3989 (22 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Chang Liu (MARN: 1281423)
CASE NUMBER: 1715509

COUNTRY OF REFERENCE: Taiwan
MEMBER:Tamara Hamilton-Noy
DATE:22 August 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 August 2023 at 2:41pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – particular social group – victim of loan sharks – family business debts – physical assault – attacks on home – torture – forced labour – return visits to Taiwan – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
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.
STATEMENT OF DECISION AND REASONS
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [in] June 2014 on a working holiday visa. He departed Australia [in] March 2015.
The applicant returned to Australia [in] April 2015 on a working holiday visa and departed Australia [in] April 2016.
The applicant returned to Australia [in] May 2016 and applied for protection on 5 July 2016. In his written protection application, he claimed that he had left Taiwan after borrowing money from loan sharks for his [product 1] company. He claimed that he had been falsely imprisoned and forced to undertake labour work by the loan sharks, and that he had been tortured and had [a specified injury]. He claimed that he went to the police to report his injuries and that the police had informed the loan sharks about this.
The applicant was not invited to attend an interview with the Department. On 4 July 2017, a delegate of the Department refused to grant the applicant a protection visa on the basis that he is not a refugee as he does not fear harm for any of the reasons in s 5J(1)(a); and is not owed complementary protection as, having regard to relevant country information, he could obtain protection from the authorities such that there would not be a real risk he would suffer significant harm.
A copy of the delegate’s decision was provided by the applicant to the Tribunal.
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 (Cth) (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.
Evidence given at the Tribunal hearing
The applicant appeared before the Tribunal on 7 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s representative did not appear at the hearing with the applicant.
The applicant gave evidence to the Tribunal that he was born in Hualin, Taiwan, and that his family moved to Taipei when he was of kindergarten age. He stated that he was raised by his father and does not know his mother, and he believes his father was born in [another town]. He stated that he has [specified family members] from the same father, but he has never met [one sibling] and he has rarely seen [one] brother because his brother was sent overseas to study. The applicant stated that he had come to Australia on his own when he was [age range] years of age and that he had returned to Taiwan twice to see his family.
The applicant told the Tribunal that he completed [grade] in senior high school and left school at [age range] years of age. He worked many jobs in Taiwan, including in [specified businesses]. He covered his own costs of travel to Australia and the costs of his returns to Taiwan. Since arriving in Australia, he has worked in [business 1s]. He is currently living with his girlfriend, a [Country 1] national who is in Australia on a [temporary] visa.
The applicant stated that he had completed the written protection application himself. He then stated that he had not and that it had been completed by his lawyer. He stated that the lawyer had read the information back to him and that he knows what is in the application and does not want to change any of this information.
The applicant told the Tribunal that he had left Taiwan because of loan sharks. His father had a lot of debt and the applicant was forced to leave home a long time ago and had no stable accommodation and he did not have a pleasant relationship with his family. His father had borrowed money; the applicant clarified with the Tribunal that he himself had not borrowed any money. As to how he had become involved in his father’s debts, he stated that he was still living in his father’s home and was trying to repay the debt with money he made himself. He was still very young but is ‘now grown up and doesn’t wish to relive that life’. He is unsure why his father needed to borrow money and is not sure how much his father borrowed. Every time loan sharks came to his home, they were spraying paint and trashing the house. The applicant believes he was in junior high school or senior high school when his father borrowed the money.
The Tribunal asked how the applicant had become involved in making repayments for his father while still in junior high school, to which he stated that they had never had money in the house and the applicant wanted to help, so was trying to get whatever job he could. As to how much contact he currently has with his father, the applicant stated he doesn’t really have a relationship with his father, that he calls his father rarely and that when he calls, his father will hang up on him. He stated this was because when he returned, he had fights with his father over money and debts; his father was not a good dad and used to hit them a lot.
The Tribunal asked whether, apart from damaging the house, loan sharks had done anything to the applicant or his father. The applicant stated he had been hurt with knives and after the most serious one, had been in hospital for a month. He had tried to provide evidence from the hospital, but he rarely talks to his father. He has scars on his body, on his [specified body parts]. He was in hospital for one month for a [specified injury], where he had an ‘open fracture’ which required a long screw to be inserted. He was in [a named] Hospital in [a specified location]. He cannot recall which ward. He had stitches and a metal screw [details deleted]. As to why he had needed a month in hospital for these injuries, he stated that he had also had surgery on his stomach because he had a blockage in his intestines and he is not sure if this was connected to his other injuries.
The Tribunal asked how many times loan sharks had attacked the applicant and he stated it had been just that one time when he was wounded, and at other times they would slap him. They verbally threatened him and asked him to repay the debt. At the time he was young and his father took him to the police once but he is not sure what happened. He doesn’t think that the police interviewed him, but he thinks he remembers attending one hearing in court. There was ‘only one bad guy’ in court, the others didn’t attend and the court ‘couldn’t complete the proceeding’.
The Tribunal observed that the applicant claimed to have suffered significant injuries, and to have spent a significant time in hospital, and that it was having difficulty accepting that the police would not see a prosecution through given this. The applicant stated in response that he has no idea what happened as he was still very young and his father was dealing with these things. The Tribunal observed that it was having difficulty accepting that the applicant would not have followed through what had happened if he had been injured as he claimed. The applicant stated in response that he asked his father about it but his father wasn’t clear and there had probably been a private conversation to come up with alternatives to resolve the matter.
The Tribunal observed that country information suggested that police take loan shark activity seriously and it had significant doubts that, if the applicant was inured and hospitalised for a month, the applicant would not have been involved in a court proceeding for these offences. The applicant stated in response that he does not know what happened, but he thinks that sometimes the police in Taiwan don’t take everything seriously.
The Tribunal also observed that it was having difficulty accepting that if the applicant had been injured so significantly, he would not have discussed with his father the circumstances that had arisen, including how much had been borrowed, the reasons money was borrowed or how much his father was required to repay. The applicant stated in response that his dad doesn’t really care about loan sharks and ever since the applicant was young, his father was always hating him and would not share with him.
The Tribunal asked for more information about the claimed assault by loan sharks and the applicant stated there had been three loan sharks and the assault had occurred in a laneway along [a named] Road, far away from where they were living. It was a coincidence that they had bumped into each other; he was with his girlfriend at the time. After the assault he hid in a [shop] and the shop owner called an ambulance and he was taken to hospital. The loan sharks were on motorcycles and hit him. The police didn’t attend because the applicant was bleeding a lot and was heavily wounded. As to how loan sharks had identified him in a laneway, the applicant stated he thinks it was because they had seen him many times when they came to his home. As to whether his father was injured by loan sharks, the applicant claimed that his father was bashed but he is not sure whether his father had wounds like him, and the applicant then moved out and doesn’t know what happened after that.
The applicant stated that if he returns to Taiwan, he fears bumping into the loan sharks and also doesn’t want to face his father. He stated that nothing has happened since he has arrived in Australia that makes him fear returning. He stated that when he returned to Taiwan before, nothing happened, but he feels safer in Australia. He returned to Taiwan to visit his father and brother. There are no other reasons he left Taiwan or fears returning to Taiwan. He doesn’t know whether his father still owes money to anyone.
In response to a further question by the Tribunal, the applicant stated that he had been assaulted by the loan sharks before he first left Taiwan in 2014.
During the hearing, the Tribunal put discrepancies in the applicant’s claims to him under s 422AA. In relation to the discrepancies between the applicant’s written claims and his oral evidence to the Tribunal regarding the circumstances in which money was borrowed, the applicant sought further time to respond to this information. Following the hearing, the Tribunal wrote to the applicant under s 424A. No response was received from the applicant to this information. The details of the s 424A information are set out below.
The Tribunal also put under s 424AA, during the hearing, that the applicant had claimed in his written claims to have been falsely imprisoned, tortured cruelly and forced to do labour work. In contrast, at the hearing the applicant had not raised these claims. The applicant stated that he understood the information as it had been put to him. The Tribunal stated that the information was relevant because the differences in the applicant’s evidence may cause doubt for the Tribunal about the credibility of the applicant’s claims, or that the applicant or his father borrowed money, or that the applicant or his father were assaulted by loan sharks. The Tribunal noted that this, subject to any response the applicant made, would be the reason or a part of the reason for the Tribunal affirming the decision under review. The applicant stated that he understood why the information was relevant to the Tribunal’s decision. He stated that he wanted to respond to the information at the hearing, and stated that when he spoke to his lawyer about false imprisonment, the thinks he told the lawyer that when the loan sharks came, they would stop them from leaving the house.
During the hearing, the Tribunal also raised with the applicant information in the delegate’s decision (a copy of which had been provided by the applicant to the Tribunal), which stated that the applicant arrived in Australia [in] July 2014; departed Australia [in] March 2015; arrived in Australia [in] April 2015; and departed Australia [in] April 2016. The Tribunal observed that the applicant’s two voluntary returns to Taiwan caused doubt for the Tribunal about the credibility of his claims, because it would expect that if the applicant was threatened and assaulted as claimed, it would expect he would not have returned voluntarily to Taiwan. The applicant stated in response that he returned for short stays only and his main reason was to see his family, to see if they were doing ok, and that when they saw each other it was not at home, he was staying with a friend. The Tribunal observed that the applicant had earlier stated he visited his family, to which he stated he had seen his father but not overnight at his place, that he would gone to his father’s place and told him he would see him somewhere else. As to why he would attend his father’s house in these circumstances rather than telephone him, the applicant stated that he called his father’s mobile first to check if everything was ok and his father said he was being safe and they hadn’t come around again. The Tribunal asked why the applicant could not now return to Taiwan if his father had not been contacted by loan sharks again, to which he stated it is a trauma for him and there is no guarantee the debts no longer exist. The Tribunal observed that any debt was his father’s debt, not the applicant’s, and asked why the applicant could not return and live in another area of Taiwan, to which he stated that he is concerned about his safety if he returns and he doesn’t want to be in that environment. The Tribunal observed that the applicant’s two returns to Taiwan also suggested to the Tribunal that he did not fear returning because of loan sharks, to which he stated, ‘Yes’.
The Tribunal observed that the applicant had first arrived in Australia in July 2014 and had not claimed protection until July 2016 and that the significant delay in claiming protection also caused doubt for the Tribunal about the credibility of the applicant’s claims, on the basis that if the applicant had been assaulted as he claimed, the Tribunal would expect the applicant to seek an avenue to remain in Australia at his earliest opportunity. The applicant stated in response that yes, what the Tribunal thinks is right, he had a working holiday visa and was just thinking he should leave Taiwan. His visa had a long time to run until it expired and there was not much information about protection visas when he arrived.
The Tribunal observed that country information suggested that police were taking loan shark activity seriously and were prepared to investigate, arrest and prosecute people for loan shark activity, which also caused doubt for the Tribunal that they would not have investigated the assault on the applicant, given the serious nature of the injuries the applicant claimed had occurred. The applicant stated in response that he only attended one court hearing and there were three to four collectors involved, and they accused the applicant of hitting them first. Because it was a ‘he said, she said’ situation, the matter was adjourned. He tried to ask his father what happened, but he suspects his father was still under threats from them or had privately settled with them.
The applicant stated that he did not want to raise anything further about his claims.
Assessment, reasons and findings
The issue in this case is whether the applicant meets any of the alternative criterion in s 36(2)(a), (aa), (b) or (c), that is, whether he is a ‘refugee’ or is owed complementary protection, or is a member of the same family unit as such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on a Taiwanese passport and has at all times maintained he is a citizen of Taiwan. The Tribunal accepts the applicant is a Taiwanese citizen and has assessed his claims against Taiwan as his country of nationality.
The applicant’s background

The Tribunal accepts the applicant is [an age]-year-old man born in Hualin and who later resided in Taipei. The Tribunal accepts that the applicant was raised by his father with whom he does not currently have contact and that he does not know his mother.
Claims for protection
The Tribunal is mindful that it must adopt a reasonable approach in making its findings in regards to credibility, based on relevant and material facts. Where ‘the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[1] The benefit of the doubt should only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[2]
[1] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at para 196.
[2] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at para 204.
The Tribunal is also mindful of the difficulties faced by refugee applicants, including nervousness and anxiety in a Tribunal hearing and the use of interpreters. The Tribunal acknowledges there may be memory issues from the lapse of time and cultural issues which may affect how an applicant answers questions before the Tribunal. The Tribunal has had regard to its Guidelines on the Assessment of Credibility in the conduct of the hearing and in assessing the totality of the applicant’s evidence before it.
Because of inconsistencies in the applicant’s evidence, and for other reasons as set out below, the Tribunal has not accepted the claims raised by the applicant as to his reasons for having left Taiwan and for fearing harm upon return to Taiwan.
Firstly, the inconsistencies in the evidence given by the applicant about the circumstances in which he claimed money had been borrowed from loan sharks in Taiwan causes doubt for the Tribunal about his claims.
In his written protection application, the applicant claimed that he used to have a [product 1] company in Taiwan and that his business was running well. The applicant claimed that suddenly the product demand from one client increased dramatically, that he borrowed an amount of money from loan sharks and that he didn’t expect it was a trap by the loan sharks and this client was a bogus company of loan sharks. The applicant claimed that, in the end, he couldn’t sell his product and owed them a large amount of money. The applicant claimed that the loan sharks started collecting the debt and disturbing his business constantly.
In contrast, at the Tribunal hearing, the applicant gave evidence that his father had borrowed money from loan sharks and that he had not borrowed money from loan sharks. The applicant gave evidence that the money had been borrowed when he was still very young and he did not know why his father needed to borrow money.
The Tribunal wrote to the applicant following the hearing under s 424A, setting out the above information. The Tribunal’s correspondence noted that the information is relevant because the differences in the applicant’s claims about why he had left Taiwan may lead the Tribunal to doubt the credibility of his evidence, may cause the Tribunal to not accept that either the applicant or his father borrowed money from loan sharks, or that either the applicant or his father was harmed by loan sharks. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept that the applicant has a well-founded fear of persecution if he returns to Taiwan now or in the reasonably foreseeable future or that he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Taiwan.
The applicant was invited to respond to the above information but did not provide any response. The Tribunal accepts the evidence given by the applicant at hearing that he had legal assistance in preparing his written claims. He told the Tribunal that he had had the information in the claim read to him and that he did not seek to make any changes to his written claims. He has not sought to provide an explanation for the differences in his evidence about his claimed experiences in Taiwan. These differences cause doubt for the Tribunal that the applicant left Taiwan because he or his father had borrowed money or that he had had adverse attention from loan sharks in Taiwan as a result of either he or his father borrowing money.
Secondly, the differences in the applicant’s claims about the harm he claims to have experienced from loan sharks in Taiwan causes further doubt for the Tribunal about his claimed experiences in Taiwan.
In his written protection application, the applicant claimed that loan sharks falsely imprisoned him and forced him to undertake labour work, that they tortured him cruelly and that, during this cruel time, [he had a specified injury], causing an [‘open fracture’].
In contrast, at the Tribunal hearing, the applicant gave evidence that he was cut with knives and that the most serious one led to him being in hospital for one month. The applicant claimed that he was cut on his forearm, that he had three to four cuts on his back and that [he had a specified injury], requiring screws in his shoulder. The applicant claimed that he was also in hospital for a blockage in his intestines. When asked by the Tribunal what else the loan sharks did, the applicant gave evidence that at other times they would slap him and there were verbal threats and they asked him to repay the debt.
The above information was put to the applicant formally under s 424AA at the hearing and the applicant stated that he understood the information as it had been put to him, that he understood why it was relevant and that he would provide a comment on the information. The applicant’s explanation given to the Tribunal – that when he spoke to his lawyer about false imprisonment, the thinks he told the lawyer that when the loan sharks came, they would stop them from leaving the house – did not alleviate the concerns the Tribunal had about the differences in his evidence. The explanation provided by the applicant did not explain why he had claimed in his written protection application that he had been forced to undertake labour work or why the injuries he claimed to have sustained differed between his written claims and his oral evidence at the Tribunal hearing. The Tribunal did not accept that, if loan sharks had stopped the applicant from leaving the house, written claims would be made that he had been falsely imprisoned, given he had instructed a migration agent to assist him with the protection application and given his evidence that the agent had read the information back to him and he had agreed it was correct. The differences in the applicant’s evidence about his claimed experiences in Taiwan cause further doubt for the Tribunal that the applicant left Taiwan because he or his father had borrowed money or that he had had adverse attention from loan sharks in Taiwan as a result of either he or his father borrowing money.
Thirdly, the applicant’s returns to Taiwan in March 2015 and April 2016 cause further doubt for the Tribunal that he fears returning to Taiwan because loan sharks had threatened or harmed him in Taiwan.
The Tribunal discussed these concerns with the applicant at the hearing and the applicant gave contradictory information about where he had stayed during the two returns to Taiwan. He then gave implausible evidence that he attended his father’s house to see if his father would meet with him outside the home, rather than telephone his father to ask this, in an attempt to explain why he had given evidence of both staying with his family and staying with a friend upon his returns. This explanation caused further doubt for the Tribunal about the credibility of the applicant’s claims. The applicant’s two returns to Taiwan cause the Tribunal significant doubt that the applicant fears returning to Taiwan because of loan sharks, on the basis that it would expect the applicant would not return voluntarily if he had been threatened and assaulted as he claims.
Fourthly, the significant delay in the applicant claiming protection – from July 2014 when he first arrived, to July 2016 when he claimed protection – adds further doubt for the Tribunal about his claimed experiences in Taiwan.
The Tribunal discussed this concern with the applicant at hearing. The applicant agreed with the Tribunal that there had been a long delay and stated that he had a working holiday visa. Given the working holiday visa is a short-term temporary visa, the Tribunal did not consider that this plausibly explained the two year delay in claiming protection, particularly when considered alongside the applicant’s two returns to Taiwan. The Tribunal would expect that, if the applicant had been assaulted and hospitalised as he claims, he would seek an avenue to remain permanently in Australia at his earliest opportunity. The applicant’s delay in claiming protection adds further significant doubt for the Tribunal about his claims.
For the above reasons, and after weighing all of the evidence before it, the Tribunal has not accepted the claims of the applicant as to his reasons for having left Taiwan. The Tribunal does not accept that the applicant borrowed money for his [product 1] company or for any other reason, or that his father borrowed money and the applicant repaid his father’s debt with his own money. The Tribunal does not accept that the applicant was assaulted by three loan sharks in a laneway in [a named] Road, that he was hit, that he was bleeding and wounded and was taken to hospital, that loan sharks came to his home and sprayed paint and trashed the house, or that they slapped him. The Tribunal does not accept that loan sharks falsely imprisoned the applicant, that he had to undertake forced labour, that he was tortured, that [he suffered a specified injury], that he was in hospital for one month for [this] injury during which time he also had surgery on his stomach for blocked intestines, or that his father was bashed. The Tribunal does not accept the applicant approached the police but the police informed loan sharks about this, or that his father took him to police, that there were court proceedings involving loan sharks or that his father privately negotiated for a formal prosecution before the courts to be resolved with money or by any other means.
Because the Tribunal does not accept the claims raised by the applicant, the Tribunal does not accept that the applicant faces a real chance of serious harm from loan sharks or people associated with loan sharks in Taiwan.
The applicant gave evidence to the Tribunal at hearing that he did not have a pleasant relationship with his family, that he was forced to leave home and that he was hit by his father. The Tribunal is prepared to accept that the applicant had an unpleasant relationship with family members when he was growing up and that he may have experienced physical violence at the hands of his father. However, he gave evidence of having returned voluntarily twice to Taiwan and that the purpose of these trips was to spend time with his family. The Tribunal does not accept the applicant fears harm from his family members in Taiwan, on the basis that it does not accept he would have returned on two occasions to see them if he fears further harm from them. The Tribunal does not accept the applicant faces a real chance of serious harm from his father or any other family members in Taiwan.
The Tribunal is not satisfied the applicant faces a real chance of persecution for any reason if he returns to Taiwan now or in the reasonably foreseeable future.
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). As the Tribunal has not accepted the claimed events relating to borrowing money from loan sharks occurred, it follows that the Tribunal does not accept that the applicant faces a real risk of significant harm from loan sharks or anyone associated with loan sharks in Taiwan. As the applicant has returned to Taiwan twice to visit family members, it also does not accept he faces a real risk of significant harm from his father or any other family members if removed from Australia to Taiwan.
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.
Tamara Hamilton-Noy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…

[2023] AATA 3989

22 August 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Standing