1715533 (Refugee)

1715533 (Refugee) [2017] AATA 2928 (13 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715533
COUNTRY OF REFERENCE:                  Taiwan
MEMBER:Shahyar Roushan
DATE:13 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 November 2017 at 10:57am
CATCHWORDS
Refugee – Protection Visa – Taiwan – Debt – Loan sharks – Drug trafficking – Criminal conviction in Australia – Re-prosecution in Taiwan – Criminal Code of the Republic of China – Laws of general application – Double jeopardy – Lawful sanctions – Article 14(7) of the ICCPR – Human Rights Committee – Imprisonment and prison conditions in Taiwan
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H(1)(a)-(b), 5J(1)(a), 5J(2)-(6), 5K-LA, 36, 36(2)(a), 36(2A)-(2B), 65, 418(3), 424(1), 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 293
SZTAL v MIBP (2016) 243 FCR 556.
SZTGM v MIBP [2017] HCA 34
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

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).
CLAIMS AND EVIDENCE
Background
The applicant, a [age] year old citizen of Taiwan, arrived in Australia from [Country 1] on [a temporary visa] [in] November 2012. He imported into Australia [illegal goods] and was arrested at the airport. He subsequently pleaded guilty to the [charge]. [In] July 2017, he was convicted [in] [State1] and was sentenced to imprisonment for [a number of years].
[In] February 2017, the applicant signed a Request for Removal from Australia. [In] May 2017, the applicant withdrew that request by signing the relevant form.
The applicant was discharged from prison [in] May 2017 and was taken into immigration detention. He applied for a protection visa [in] July 2017.
Application for a Protection Visa
In his application form, the applicant provided no details in relation to his past residential addresses, employment history and family composition. In relation to his reasons for claiming protection, he stated that he was a real estate developer in Taiwan. In 2015, he tried to obtain a piece of land for property development purposes. He and his business partner borrowed ‘[a substantial amount of money] from loan sharks’. In September 2016, ‘policies adverse to the real estate market were released’. His ‘project’ could not be ‘sold’ within a short period and he could not repay his debts. He was ‘falsely imprisoned’ and [he was] ‘severely injured’. The ‘gang members’ also threated members of his family. He called the police and they said that they would investigate. However, he ‘did not get any response’. He was ‘hunted’ by gang members and had to leave Taiwan in order to survive.
The applicant was not invited to attend an interview with the Department.
[In] July 2017, the delegate refused to grant the visa. In his assessment, the delegate did not refer to the applicant’s immigration history, his arrest and conviction and the fact that he had been in prison in Australia since his arrival in November 2012. The delegate assessed the application solely on the basis of the claims presented by the applicant in his application for a protection visa. He found that the applicant’s fear of persecution was not for any of the reasons provided in s.5J(1)(a) of the Act and that he is not a refugee as defined by s.5H(1). With regard to complementary protection, the delegate found that the applicant would receive protection from the Taiwanese authorities against any threats he faces from loan sharks and gang members in Taiwan ‘to reduce any risk he faces from this criminal entity to less than a real one’. The delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Taiwan, there is a risk that the applicant will suffer significant harm.
Application for Review
The applicant applied for a review of the delegate’s decisions. He was represented in relation to the review by his registered migration agent.
The First Hearing
The applicant appeared before the Tribunal on 17 August 2017 (the first hearing) to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in Mandarin and English languages.
The applicant provided the following information to the Tribunal at the first hearing.
The applicant told the Tribunal had resided in Guangzhou, China since 1999. He lived at a single address in a rented apartment with his family in Zhuhai in the four year period before he travelled to Australia. In China, he owned a [factory]. In 2007, as a consequence of the Global Financial Crisis, he lost much of his business and had to close down his factory. Despite closing his business, he continued to [trade] from other manufacturers to sell in Taiwan. The profits, however, were low and he had to borrow money. In 2010, the applicant borrowed about [a substantial amount] from a Taiwanese national in order to buy stock. He had agreed to repay the amount after selling his stock. However, the cheques he was given by those to whom he had sold the stock took time to clear and, in the meantime, he needed more stock, so he borrowed more money. Between 2010 and 2011, he accumulated large amounts of debt. He was unable to repay his debts because some of the cheques he was given were dishonoured. The applicant’s business partner, [Mr A] also owed him money, which he was unable to repay.
The applicant stated that he had borrowed money from a person named [Mr B], a businessman. He met [Mr B] in 2009 in China through a friend. [Mr B] was based in Taiwan, but he travelled to China regularly. When the applicant failed to repay his debt, [Mr B] put pressure on him. He called [Mr B] and told him that he had no money and could not pay the debt. [Mr B] told him not to call again and that he had handed the matter over to debt collectors.
He stated that, in January or February 2012, five people were dispatched from Taiwan to claim the money. These people went to his house and asked for money. When he told them that he did not have any money, they slapped him and threatened his family. One month later, these people returned to his house. This time they punched and kicked him, causing him to bleed from the nose. They threatened him again and told him that this would be his final warning. They returned 20 days later and asked the applicant for money. He pleaded and told them that he would be prepared to do anything. They left, but returned two weeks later. This time they attacked him with a knife and ‘cut’ [him]. As a consequence, he was hospitalised and required surgery. He called the police but the police said they could not find those who had attacked him. He remained in hospital for two months. Following this episode, his assailants returned and told him that they knew he did not have the money to repay his debts. However, they asked him to do something which would help him to repay his debt. They also told him that they would pay all his living expenses if he accepted to assist them. In September 2012, the applicant was asked to take [illegal goods] to another country. He initially refused, but he accepted after they threatened his wife and children.
He was arrested immediately after arriving in Australia. He was subsequently convicted and sentenced to [a term of] imprisonment. He told the police everything. He also contacted the police in Taiwan and told them that these people were going to hurt him. He also called [Mr B] and told him that he was in jail. While he was in prison, his wife and children moved to a different address in Zhuhai, but the debt collectors found his parents. They found out that he was being released from prison, so they sent him a threatening letter to the prison from Taiwan.
The applicant stated that he is a permanent resident of China, he has a travel permit and he can return to that country. He produced a copy of a Permit of Entry, with an expiry date of August 2017. When the expiry date was pointed out to the applicant, he stated that he can go to China and renew it at the airport.
Finally, the applicant referred to an untranslated newspaper article and stated that, if he were to return to Taiwan, he would be prosecuted and imprisoned for the offences for which he was convicted in Australia.
Post-Hearing Submissions
On 21 August 2017, the applicant’s representative wrote to the Tribunal and stated that there are ‘some misunderstandings between my client and us’ and that the information relating to the applicant ‘needs to be updated’. The representative stated that, upon seeking ‘further instructions’, the applicant had provided the following information:
1.     I used to worked in Mainland China and engaged in [business]. Our main business was to sell [goods] to Taiwan.
2.     In 2007-2008 financial crisis, many companies went bankrupted. My company was closed down as well due to poor operation.
3.     Later, there is a lender offering a loan around [a substantial amount] Yuan to me so I could continue my business. However, since Taiwan clients kept delaying payment, I failed to repay my loan.
4.     Since I couldn’t pay my loan for a long time, my hand and shoulder were cut and hurt by Gang members.
5.     Later I was forced to deliver something to Australian and I was intercepted by Australian customs.
6.     Gang members even sent letter to Australia to threaten me. I am now serving my sentence in Australia. I want to live in Australia as a refugee or go back to Mainland China.
Other Evidence
In the course of conducting the review, the Tribunal located a Country of Origin Information Service (COISS) research response on the Department’s databases concerning re-prosecution in Taiwan. The details included in the ‘background information’ contained in the response were in relation to an unidentified Taiwanese national. The information, however, was identical to the circumstances of the applicant’s arrest and conviction, as disclosed by him at the first hearing. According to this information, [in] May 2017, the Taiwanese consulate informed the Department that the applicant ‘is on their wanted person list for [other types of offences] in Taiwan’. A report by the New Taipei District Prosecutors Office also stated that, upon arrival to Taiwan, the applicant will be taken into custody and, if convicted of the charges, he is likely to face [imprisonment].
On 24 August 2017, the Tribunal wrote to the Department, pursuant to s.424(1) of the Act, requesting the Department to confirm whether the ‘Taiwanese national’ referred to in the research response is the applicant and whether the response was prepared in connection with his circumstances. Under s.418(3) of the Act, the Tribunal also requested that the Department give to the Tribunal each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.
On 30 August 2017, the Department wrote to the Tribunal confirming that the research request and the response were in relation to the applicant.
On 4 September 2017, the Department provided the Tribunal with the following documents:
a.    Australian Federal Police (AFP) Statement of Agreed Facts, dated [July] 2013.
b.    Sentencing Court Remarks, dated [July] 2013, in relation to the applicant.
c.    [Corrective] Services Sentence Report, dated [January] 2017.
d.    Record of Criminal Detention Interview with the Department, dated [January] 2017.
e.    Copy of departmental email correspondence, dated [April] 2017, essentially stating that the applicant had advised that he would like to be removed to the People’s Republic of China (PRC) and not Taiwan. He holds a Permit of Entry to China, which is ‘insufficient’ for removal purposes. The applicant had informed a departmental officer that he believed that there were ongoing charges against him in Taiwan and that he might be arrested at the airport in Taiwan.
f.   New Taipei City District Prosecutors Office report dated [April] 2017.
g.    Pre-removal clearance referral, dated [May] 2017.
h.    Withdrawal of Request for Voluntary Removal signed [May] 2017.
i.   Entry Certificate for valid entry into Taiwan by [May] 2017.
Statement of Agreed Facts
According to the information contained in the Statement of Agreed Facts, the applicant had told the police that he imported [illegal goods] into Australia ‘for money’. When asked why he decided to come to Australia, he responded ‘because my arm is injured, it’s disabled but I need the money for my wife and for my children. So I thought that I do this and actually get the money’. He said ‘someone I knew through my friend’ told him he could do this and that he only met one person who gave him the [illegal goods]. The applicant attended ‘an appointment’ with that person in Shenzhen, where they [gave him the illegal goods]. He said he did not know the person’s name and he ‘never ‘called him. He said the person who gave his name to the person who gave him the [illegal goods] was ‘[Mr C]’. [Mr C] had asked him if he wanted to make some money and had told him that, if he did, then he could ‘explore some method’ to help the applicant make some money. Two days later, [Mr C] called the applicant and gave him the person’s number.
The applicant and the person who was arrested with him at [an Australian] airport, [Mr D], rented an apartment [in] [Country 1] and met this person. The applicant had said that he had known [Mr D] for many years. [Mr D]’s business was ‘down’ and the applicant told [Mr D]: ‘I want to do this, then he said we’d do it together’. The applicant and [Mr D] were to be paid the same share of [amount] RMB each.
Sentencing Court Remarks
[In] July 2017, following the applicant’s conviction by [the] Court in [State 1] , [Judge E] referred to the following information in his sentencing remarks:
The applicant moved to mainland China in 1990 to find work. He found such work in a family run [business]. He opened his own small family business [in] 2003. However, he had to close that business in 2009 and was unable to find employment after that. He had not had a job since 2009.
Before travelling to Australia, the applicant’s wife was living at a factory in which she was working full-time and that the applicant’s [children] were living with an aunt. The applicant was living with [Mr D].
In March 2012, the applicant was living in a house in Zhuhai. He was stabbed by a neighbour resulting in an injury to his [hand] and/or [forearm]. The stabbing was a result of a dispute between neighbours about noise. According to an affidavit, sworn by the applicant [in] July 2013, his ‘hand was sliced two thirds of the way through’. As a result of that injury, the applicant required two different surgical procedures. The first surgical procedure cost the equivalent of $[amount]. The applicant was then ‘impecunious’ and needed to borrow money for that surgery from his mother. A second surgical procedure was needed to repair bones and tendons in the applicant’s [hand]. He had no money to pay for that surgery, which again cost the equivalent of $[amount]. He borrowed money to pay for that surgery from an associate of his who was called either ‘[Mr C]’ or ‘Boss [C]’. That surgery was performed in May 2012. After the second surgery [Mr C] told him he had to repay the debt.
The applicant, subsequently, agreed to participate in the [illegal goods] importation for ‘financial gain’ and the motive put forward by him was importation for financial gain. [Judge E] quoted the applicant as having said words to this effect: ‘They told me that I could come here to and then I can earn more than [amount] [Country 1] dollars’. The judge accepted that the applicant became involved in [illegal goods] importation for the motive of financial gain and that he effectively recruited [Mr D].
[Judge E] stated that the applicant had claimed that a threat was made to harm his family. However, ‘such a threat was never mentioned by the applicant when he was interviewed by the police’. [Judge E] stated:
Indeed statements made by [the applicant] to the police indicate a lack of such fear. For example, [the applicant] told the police that he had [Mr C]’s telephone number and that the number of the “organiser” was stored in his mobile phone. In other words, [the applicant] was prepared to tell the police of the telephone numbers of [Mr C] and “the organiser”, meaning that he must not have been particularly fearful of them.
The Second Hearing
The Tribunal invited the applicant to attend a further hearing in order to discuss with him the information contained in the Statement of Agreed Facts and the Sentencing Court Remarks. The applicant appeared before the Tribunal on 21 September 2017 (the second hearing). He was assisted by an interpreter in the Mandarin and English languages. The representative did not attend the hearings. Where relevant, the applicant’s oral evidence to the Tribunal at the second hearing is referred to below in the Tribunal’s reasons.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Relevant Law
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.
Analysis, Findings and Reasons
The Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to the reasons detailed below.
The Debt
The applicant’s evidence to the Tribunal in relation to his circumstances and the reasons behind his decision to import [illegal goods] into Australia differed significantly from the information contained in the Statement of Agreed Facts and the sentencing remarks.
First, the applicant provided inconsistent accounts in relation to his living arrangements in China. He told the Tribunal that he moved to mainland China in 1999 and resided in Guangzhou. He lived at a single address in a rented apartment with his family in Zhuhai in the four year period before he travelled to Australia. He also stated that, following his imprisonment in Australia, his wife and children moved to a different address in Zhuhai.
According to the sentencing remarks, the applicant moved to mainland China in 1990 to find work. Before travelling to Australia, the applicant’s wife was living at a factory in which she was working full-time and that the applicant’s [children] were living with an aunt. The applicant was living with [Mr D], the person he was arrested with upon his arrival in Australia. This information was put to the applicant at the second hearing under s.424AA of the Act. The applicant responded that only one of his children was under the care of an aunt. The other was under his care, but he could not look after both of his children. With regard to living with [Mr D], he stated that [Mr D] had moved to Tianjin City in order to run a business. He was unsuccessful and, upon returning to Zhuhai, the applicant asked [Mr D] to come and live with him. The applicant did not offer an explanation as to the inconsistencies in his evidence and the Tribunal did not find his response at the second hearing to satisfactorily address the Tribunal’s concerns. Theses inconsistencies raise serious concerns in relation to the applicant’s credibility.
Secondly, the applicant provided inconsistent accounts in relation to his employment and business activities before his departure from China. The applicant told the Tribunal that he owned a small [factory] in China. In 2007, he lost his business and had to close down his factory. However, in partnership with [Mr A], he continued to buy [goods] from other manufacturers to sell in Taiwan. In the course of carrying out this new business activity, he borrowed approximately [a substantial figure] from a Taiwanese national, [Mr B]. However, according to the sentencing court remarks, the applicant he had to close his clothing business in 2009 and was unable to find employment after that. He had not had a job since 2009. The Tribunal put this information to the applicant at the second hearing under s.424AA of the Act. The applicant did not specifically address this information and did not offer an explanation for the inconsistencies in his evidence. The Tribunal did not find the applicant’s evidence in relation to his employment and business activities credible, reliable or convincing.
Thirdly, the applicant provided inconsistent accounts in relation to the circumstances which had led him to bring [illegal goods] to Australia. The applicant stated at the first hearing that, when he failed to repay the money he had borrowed, [Mr B] put pressure on him. Subsequently, he was told by [Mr B] that he had handed the matter over to debt collectors. He stated that, in January or February 2012, five people were dispatched from Taiwan to claim the money. These people visited him on a number of occasions. They threatened, slapped, punched and kicked him. On one occasion, they attacked him with a knife and cut him on his wrist and upper arm. As a result of this attack, he was hospitalised for two months and underwent surgery. Following this incident, he was asked to take [illegal goods] to Australia as means of repaying his debts. The applicant made no mention of his co-accused, [Mr D].
It was put to the applicant at the first hearing that these claims were not included in his protection visa and that he had provided a different set of claims as reasons for claiming protection. He responded that he did not know the story in his application for a protection visa. He has been in prison in Australia since 2012 and could not have been in Taiwan in 2015.
In an email, dated 21 August 2017, the applicant’s representative stated that there had been a ‘misunderstanding’ with his client and provided ‘updated’ information in relation to the applicant. This information, essentially, reiterated the applicant’s claims at the first hearing. In particular, it was stated that the applicant’s ‘hand and shoulder were cut and hurt by Gang members’ because he was unable to repay his debts and that he was ‘forced to deliver something’ to Australia.
However, according to the Statement of Agreed Facts, the applicant had told the AFP that he imported [illegal goods] into Australia ‘for money’. When asked why he decided to come to Australia, he responded ‘because my arm is injured, its disabled but I need the money for my wife and for my children. So I thought that I do this and actually get the money’. A friend, [Mr C], had asked the applicant if he wanted to make some money and had told him that, if he did, then he could ‘explore some method’ to help him. [Mr C] had then provided the applicant with the contact details of another person, who supplied the applicant with the [illegal goods]. The applicant had attended ‘an appointment’ with that person in Shenzhen, but he did not know the person’s name and he ‘never’ called him. The applicant told [Mr D] that he wanted to do this and [Mr D] wanted to participate. They were both promised [a payment] each for the job.
The applicant and the person who was arrested with him at [the Australian] airport, [Mr D], rented an apartment at a port in [Country 1] and met this person. The applicant had said that he had known [Mr D] for many years. [Mr D]’s business was ‘down’ and the applicant told [Mr D]: ‘I want to do this, then he said we’d do it together’. The applicant and [Mr D] were to be paid the same share of [money] each.
In his sentencing remarks, [Judge E] also stated that the applicant had agreed to participate in the [illegal goods] importation for ‘financial gain’ and accepted that the applicant became involved in [illegal goods] importation for that reason, recruiting [Mr D] in the process. [Judge E] also stated that the injury to the applicant’s wrist and arm was a result of being stabbed by a neighbour in March 2012 following a neighbourhood dispute about noise. As a result of that injury, the applicant required two different and costly surgical procedures. The applicant had to borrow money from his mother to pay for the first surgery, but he had no money to pay for the second surgery. He borrowed money to pay for that surgery from an associate called [Mr C]. Subsequently, [Mr C] told him he had to repay the debt. [Judge E] rejected the applicant’s belated assertion that a threat was made to harm his family. [Judge E] noted that such a threat was never mentioned by the applicant when he was interviewed by the police and that his statement to the police did not suggest that he was ‘particularly fearful’ of [Mr C] and the organiser.
The above information was put to the applicant at the second hearing under s.424AA. In response, the applicant provided yet another version of events. He stated that he has two injuries to his arm: one is a ‘slicing’ and the other is a stabbing. He sustained one injury as a result of an argument with a neighbour, but he sustained the other because of his debt. He could not pay so he was stabbed. He stated that he was stabbed in 2011 and then he received money from his mother. However, he borrowed money from [Mr C] for the second surgery. He said [Mr C]’s gang is different to [Mr B]’s gang. His financial situation was bad at the time. He asked for the debt repayment to be postponed, because he had other debts. [Mr C]’s gang associated with [Mr B]’s gang and [Mr C] told [Mr B] that the applicant owed him money. [Mr B] told [Mr C] to ask the applicant to go for a trip to Australia. About 20 days later, [Mr C] bought a plane ticket for him and asked him to go Shenzhen, where he told him to take [illegal goods] to Australia. They threatened to harm him and his family if he did not travel. They promised to pay him [an amount] because he did not have money. He did not do it only for money. He also wanted to repay his debt to [Mr C]. The applicant did not provide an explanation as to why he had not disclosed to the Tribunal at the first hearing or in his post-hearing correspondence his neighbourhood dispute, having borrowed money from his mother, having borrowed money from [Mr C], [Mr C]’s association with [Mr B], [Mr B] asking the applicant to go to Australia and that he was promised a payment of [an amount] in exchange for bringing [illegal goods] into Australia. Nor did the applicant offer a satisfactory explanation for the significant inconsistencies in his narrative of events since the time of his arrest. The applicant’s evidence casts serious doubt on his credibility and the veracity of his claims.
Fourthly, the applicant provided inconsistent and implausible evidence in relation to events he claimed had transpired whilst he was in prison in Australia. At the first hearing, the applicant told the Tribunal that he had been sent a threatening letter in Australia. The applicant showed the Tribunal the letter and the envelope containing the letter. The envelope, which appears to have been mailed from Taiwan, was addressed to the applicant and identified him by name and Master Index Number (prisoner identification number). The address also identified the applicant’s prison block number, the name of his prison and the prisons’ locked mail bag for correspondence. The applicant was asked how the sender knew his exact details and address. He said he did not know. He had told his friends that he was in jail. When pressed as to how the sender would have become aware of the exact details, he said, when he was in jail, he contacted a friend and asked his friend to find the person who had asked him to import [illegal goods] to Australia. He also asked his friend to send him money because he had no money. When asked why he wanted his friend to find this person, he said he wanted his friend to tell the person that he was in jail and could not repay his debt. He also wanted to see if this person was going to give him money. The applicant was unable to offer a cogent, satisfactory or persuasive explanation as to how those who had purportedly sent him the threatening letter had been able to obtain his details. The Tribunal finds it highly implausible that the applicant’s details in prison could have been obtained by anyone in Taiwan without the applicant having provided them.
According to an oral translation of the letter, rendered by the interpreter at the hearing, the letter warned the applicant of the consequences of speaking to the police and reporting pm [Mr F]. A threat was also made to kill the applicant if he returned. When asked why these people wanted to harm him, he said he did not know. When asked who [Mr F] was, he said he did not know. However, when the Tribunal asked the applicant about the information he had provided to the police, he said he had told them that he knew [Mr F] and gave them [Mr F]’s address. When it was put to him that he had said earlier he did not know [Mr F], he said he had told his friend he knew who had asked him to import [illegal goods] into Australia and his friend informed him that the police had arrested [Mr F]. The applicant added that [Mr F]’s nickname is [name deleted]. Later in the course of the hearing, the applicant stated that he did not know if the person’s name is [Mr F] or not, but his friend told him that the police had arrested this person. The Tribunal finds the applicant’s evidence in this regard disjointed, incoherent, improvised and unpersuasive.
For all the reasons set out above, the Tribunal finds the applicant not to be a credible, truthful and reliable witness. His evidence shows a propensity to manufacture, shift and tailor evidence in a manner which achieves his own purpose. The Tribunal finds that the applicant has fabricated evidence to achieve an immigration outcome.
The Tribunal, therefore, does not accept that the applicant had accumulated debts in China or Taiwan relating to any business activities. The Tribunal does not accept that he had borrowed money from [Mr B], [Mr C], [Mr F] or anyone else. The Tribunal does not accept that anyone had put any pressure on him to repay any debts. The Tribunal does not accept that he was pressured, threatened, harassed, cut, sliced, stabbed or harmed in any other way by debt collectors, gang members or anyone else in relation to any debt. The Tribunal does not accept that anyone had ever threatened members of the applicant’s family. The Tribunal does not accept that the applicant was pressured, forced or threatened to carry [illegal goods] into Australia as a means of repaying his debts. The Tribunal does not accept that the applicant had been placed under any form of duress by anyone to import [illegal goods] into Australia. The Tribunal finds that the applicant had imported [illegal goods] into Australia for financial gain.
The Tribunal has considered the purported threatening letter submitted by the applicant at the hearing in support of his case. However, having regard to the fundamental lack of credibility in the applicant’s evidence throughout the process, the Tribunal is not prepared to give any weight to the letter or its contents. The Tribunal does not accept that, whilst in Australia, the applicant had received any threats, in writing or orally, by anyone for any reason, including any information he might have provided to the Australian police.
The Tribunal does not accept that the applicant has been harmed in the past by anyone because of any debt he owed or that, if he were to return to Taiwan now or in the reasonably foreseeable future, there is a real chance that he will be harmed for this reason.
Having considered the applicant’s claims, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm by anyone for the reason of any debt he claimed to have owed.
Imprisonment and Double Jeopardy
At the second hearing, the Tribunal discussed with the applicant the information provided to the Department by the Taiwanese consulate in relation to [other] charges [awaiting] him in Taiwan. He stated that he was sentenced to [imprisonment] in Taiwan in 2005. It was put to him that the charges referred to by the Department are more recent.
As it was put to the applicant at the hearing, it appeared that the laws under which he has been charged and any associated punishment are laws of general application, namely the Criminal Code of the Republic of China (Taiwan). It is well established that enforcement of a generally applicable law does not ordinarily constitute persecution, for the reason that enforcement of such a law does not ordinarily constitute discrimination.[1] As Brennan CJ stated in Applicant A:
… the feared persecution must be discriminatory. … [It] must be “for reasons of” one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.[2]
[1] See Chen Shi Hai v MIMA (2000) 201 CLR 293, at [20].
[2] Applicant A v MIEA (1997) 190 CLR 225, at 233.
As it was put to the applicant at the hearing, there is no evidence before the Tribunal to suggest that the relevant criminal laws under which he is likely to be charged, prosecuted and, possibly, sentenced, are discriminatory or that they will be enforced against him in a discriminatory manner. The Tribunal finds that charging and prosecuting the applicant, as well as any penalties that may be imposed on him, are the result of the non-discriminatory enforcement of laws of general application. The Tribunal, therefore, does not accept that there is a real chance that the applicant would face serious harm amounting to persecution.
The country information before the Tribunal indicates that a Taiwan national returned to the country after having served a sentence for [illegal goods] importation in a foreign prison could face further punishment, according to Taiwan’s criminal code. Taiwan’s criminal code applies to a range of [offences] committed overseas. According to Chapter 20 of the Code, this includes Taiwan nationals involved in [a range of illegal conduct]. [Sentence deleted].[3] The Tribunal, therefore, accepts that that there is a real chance that, if the applicant were to return to Taiwan, he could face further imprisonment for the [offences] he was convicted of in Australia. These laws, however, are also laws of general application. There is no evidence before the Tribunal that the laws referred to are discriminatory or that they will be enforced against him in a discriminatory manner. Whilst the Tribunal appreciates that these laws are perceived to be severe, non-discriminatory application of generally applicable laws does not constitute persecution.[4]
[3] [Source deleted].
[4] See Applicant A v MIEA (1997) 190 CLR 225.
According to the US Department of State’s 2016 Country Reports on Human Rights Practices in relation to Taiwan, whilst overcrowding was a problem, prison and detention centre conditions generally met international standards. The report also indicated that there are no reports of political prisoners or incidents of torture by authorities and that Taiwan allows independent observers to inspect prison conditions.[5]
[5] US DoS, Bureau of Democracy, Human Rights, and Labor, 2016 Country Reports on Human Rights Practices Report, Taiwan, 3 March 2017,
On the basis of the evidence before it, the Tribunal does not accept that there is a real chance that the applicant would face serious harm amounting to persecution if he were to face further imprisonment in Taiwan for the offences he was convicted of and served a prison sentence in Australia. The applicant did not claim, and the Tribunal does not accept, that there is a real chance that the applicant would face serious harm amounting to persecution for any reason whilst serving a prison sentence in Taiwan.
With regard to complementary protection, the Tribunal accepts that, if convicted of the [other] charges [and] if he were to face further punishment for the [offences] committed in Australia, the applicant is likely to face imprisonment for a number of years.
Under the definitions in s.5(1) of the Act, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment do 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.’ As such, an act or omission that arises from, is inherent in or incidental to a lawful sanction, where that sanction itself does not breach the Articles of the International Covenant on Civil and Political Rights (ICCPR), will not amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, even if it inflicts (severe) pain or suffering or extreme humiliation.

The Tribunal is satisfied that any imprisonment the applicant is likely to face in Taiwan is an act arising only from lawful sanctions. The issue is whether these sanctions are inconsistent with the Articles of the ICCPR. In making its assessment, the Tribunal has considered the applicant’s likely re-prosecution in Taiwan for offences he was convicted of in Australia, as well as any consequential imprisonment in relation to both the re-prosecution and prosecution in connection with the [other] [charges].
Article 14(7) of the ICCPR states:
No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
The language of the provision appears to suggest that the prohibition on double jeopardy applies only within ‘each’ state’s judicial system. Indeed, the Human Rights Committee, the authoritative UN body for interpreting the ICCPR, has clearly stated that the scope of Article 14(7)’s double jeopardy protection is limited to multiple prosecutions by one state.
In A.P. v. Italy,[6] the Committee expressed the view that ‘article 14, paragraph 7, of the Covenant… does not guarantee non bis in indem with regard to the national jurisdictions of two or more States. The Committee observes that this provision prohibits double jeopardy only with regard to an offence adjudicated in a given State.' Subsequently, the Human Rights Committee affirmed this interpretation in A.R.J. v. Australia, stating:
The author has claimed a violation of article 14, paragraph 7, because he considers that a retrial in Iran in the event of his deportation to that country would expose him to the risk of double jeopardy. The Committee recalls that article 14, paragraph 7, of the Covenant does not guarantee ne bis in idem with respect to the national jurisdictions of two or more states - this provision only prohibits double jeopardy with regard to an offence adjudicated in a given State.[7]
[6] A.P. v. Italy, Communication No. 204/1986, Report of the Human Rights Comm., 43d Sess., supp. No. 40, U.N. Doc. A/43/40 (1988); A.R.J. v. Australia, Communication No. 692/1996, Human Rights Comm., U.N. Doc. CCPR/C/60/D/692/1996 (July 28, 1997)
[7] A.R.J. v. Australia, U.N. Doc. CCPR/C/60/D/692/1996,
Therefore, the applicant’s prosecution and possible imprisonment arise only from and are incidental to lawful sanctions that are not inconsistent with the Articles of the ICCPR. When this was explained to the applicant at the hearing, he stated that he did not want protection and just wanted to return to China. The Tribunal finds that, if the applicant was removed from Australia to Taiwan and faced prosecution for the offences he was convicted of in Australia, this does not breach Article 14(7) or any other Articles of the ICCPR.
The Tribunal accepts that the applicant is likely to face a relatively lengthy prison sentence in Taiwan as a consequence of any re-prosecution and any conviction in relation to the [other] [charges].
The Department’s PAM3 Refugee and Humanitarian - Complementary Protection Guidelines in relation to imprisonment/prison conditions note that detention itself is not a breach of Article 7. However, particularly harsh treatment in detention may constitute a violation of Article 7.[8] The Guidelines noted that ‘prison conditions may constitute cruel, inhuman or degrading treatment or punishment if they seriously or systematically deprive a detainee of human dignity’. It was further stated that in certain circumstances it may be appropriate to infer an intention to inflict pain or suffering or to cause extreme humiliation if it is evident that pain or suffering or extreme humiliation was or may be knowingly inflicted.
[8] Department of Immigration, PAM3 ‘Complementary Protection Guidelines’, section 29, as re-issued 21 May 2015.
On 18 January 2017, the Review Meeting of the Republic of China’s Second Report under the ICCPR and ICESCR was concluded. The Concluding Observations and Recommendations adopted by the International Review Committee were released on 20 January 2017. The Recommendations referred to overcrowding of prisons and noted that the problem is recognised by the Government of Taiwan. Previously, the Government of Taiwan had stated that ‘lack of human resource, budget, and protest from local residents wherever prisons are relocated’ are impediments to improvements. However, the Recommendations also referred to the measures already taken by the Government of Taiwan, including the construction of new prisons.[9] On 2 October 2017, Taipei English News reported on the completion of the expansion of Taipei Prison, designed to reduce overcrowding and ensure that international human rights standards are met. The same source reported that new prison facilities are also being built at Ilan Prison, Yunlin Prison, and Taoyuan Prison.[10]
[9] Review of the Second Reports of the Government of Taiwan on the Implementation of the International Human Rights Covenants, Concluding Observations and Recommendations adopted by the International Review Committee, Taipei, 20 January 2017.
[10] Taipei Prison Expansion Completed: Overcrowding to be Reduced, Taipei English News, 2 October 2017.
At the hearing, the Tribunal put to the applicant that the evidence before it did not suggest that prisoners in Taiwan face particularly harsh treatment in detention. The applicant responded that he was worried about being punished for the offences he was convicted of in Australia.
On the basis of the evidence before it, the Tribunal is not satisfied that prison conditions in Taiwan, including overcrowding, are so harsh as to constitute a violation of Article 7 of ICCPR. More importantly, the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Act requires that pain or suffering be ‘intentionally inflicted’ on a person and that the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. Intent, in this context, requires an actual, subjective, intention on the part of a person to bring about the suffering by their conduct.[11] In SZTAL v MIBP, a majority of the High Court rejected the contention that knowledge or foresight of a result establishes the necessary intention element of the definitions of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.[12]
[11] SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) at [26]-[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556.
[12] SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) per Kiefel CJ, Nettle, Gordon and Edelman JJ (Gageler J dissenting).
The Tribunal, on the evidence before it, does not not accept that the pain or suffering caused by any overcrowding and other problems in Taiwan prisons, combined with any term of imprisonment the applicant might face, is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. The Tribunal does not accept that any overcrowding and other problems in Taiwan prisons, combined with any term of imprisonment the applicant might face, are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’. The Tribunal does not accept, therefore, that there are 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.
Conclusions
After considering all of the applicants’ claims, both individually and cumulatively, the Tribunal finds that the applicant does not have well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in 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). After considering the applicant’s claims, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering or pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.
The Tribunal, therefore, 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.
Shahyar Roushan
Senior 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.
…
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 2928

13 November 2017

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

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Natural Justice