1715554 (Refugee)

1715554 (Refugee) [2022] AATA 2026 (11 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715554
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Joseph Lindsay
DATE:11 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 May 2022 at 12:50pm
CATCHWORDS
REFUGEE – Protection visa – Taiwan – multiple instances of inconsistent information – applicant exposed the officials of Zhongli City colluding with the mafias – applicant was not subjected to the alleged behaviour by the Taiwanese authorities – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 8 March 2016. The applicant appeared before the Tribunal on 22 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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–5LA, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Written claims in applicant’s protection visa application
In his protection visa application the applicant claimed, in summary, that he was repeatedly threatened by the mafia and suffered government persecution because he exposed the officials of Zhongli City, Taoyuan County, colluding with “the mafias.”
He claimed that in February 2013, he and a friend invested in a “[Country 1]-style” restaurant in [a] District of Zhongli City. He said he operated the restaurant near another restaurant that was a “[Country 2]-style” restaurant.
He claimed that in early October 2014, five or six men came to his house, carrying weapons. He claimed that the men claimed they were friends of the owner of the “[Country 2]-style” restaurant. He claimed that the men offered to buy his restaurant, but he refused to sell. He claimed the men took their knives out and threatened him. He claimed his family immediately called the police, and the police came in about half an hour. He claimed the police did not stop “the mafia” and said that the applicant had made a false report. He claimed that when the “mafias” left, they fiercely said, “No help you call the police, you are a dead person if not agree!” The applicant claimed that Taiwan’s “mafias” are linked to officials of the Taiwanese Government.
In addition, the applicant claimed that on [date] January 2015, he distributed protest letters to citizens in front of the Zhongli City Government. He claimed that police arrested him and took him to the Zhongli City Detention Centre. He claimed that, while he was in detention, he held a hunger strike for four days, but that on the third day he was force-fed.
He claimed that when he was released the police told him “No one can help with your case. Do not come here to pass out flyers. If you come here again, we will kill you.” Nevertheless, he claimed that he pasted protest letters on the wall at night time.
He claimed that on [date] February 2015, around [time], police came to his house, and again he was taken to Zhongli City Detention Centre. He claimed that after he arrived at the detention centre, a criminal inmate named “[Mr A]” dragged him by his hair, beat him and pinched him. He claimed that there was a vicious murderer with the last name [name], who repeatedly tried to beat him to death. Again, he claimed that when he held a hunger strike, he was force-fed. He claimed that more than ten people force-fed him at once, spilling food paste all over him and injuring his mouth. He claimed that the guards also instructed other inmates to force-feed him. He claimed he was force-fed once a day. He claimed that after three times they were not able to get food into his stomach anymore, so they inserted a tube through his nose. He claimed that the inmates in his cell force-fed milk powder to him every day. He claimed that the hunger strike lasted for six days. He claimed that the police asked him to write a “guarantee” that he would “give up” the protest. He claimed that someone with the last name of [Name 1] and several others told him to sign a statement, but he refused. He claimed that, in the afternoon, he was tortured in a technique called “splitting the legs”, where several people pushed his legs apart 180 degrees. He claimed that it was so painful that he passed out. He claimed that later he was given a pen to write a statement, but he threw the pen away. He claimed he was then made to squat until 5 or 6pm that day. He claimed he would not write anything because he believed in fairness and justice. He claimed he had fevers and lost consciousness.
He claimed he was taken to hospital, where the doctors said he was not sick, but later, “someone” heard the doctors telling the police that his intestines had severe problems.
He claimed that police still forced him to work. He claimed that once he had a fever of over 39 degrees, but after he went back to the dorm and his temperature went down a bit, the police forced him to go back to work. He claimed this situation lasted for about two weeks.
He claimed that the police planned to take him to the Zhongli City Prison, but they did not do it since his health was extremely poor, and the doctors said he had severe intestinal problems and had only months to live. He claimed he was released on [date] February 2015.
He claimed that police told him that he disrupted social order, and he would be sentenced if he “got caught” next time.
He claimed the “mafias” came to his home and threatened him. He claimed the “mafias” wanted to punish him. He claimed that because he did not want to hurt his family, he prepared to go abroad after his recovery. He claimed that in March 2015, he went to [Country 1], where he found that there was a close relationship between [Country 1]’s “mafias” and Taiwan’s “mafias” and so he went to Australia.
Claims at hearing
In the hearing, the applicant gave the following evidence. He said that he was born [in] [Country 1] on [date]. He said that he was actually a citizen of two countries – [Country 1] and Taiwan. He claimed to hold both a [Country 1] passport as well as a Taiwanese passport. He said his mother is a [Country 1] citizen and his father is a Taiwanese citizen. He said that his mother is in [Country 1] but he does not know where his father is. He said his younger brother and sister were also in [Country 1]. He said that when he was around [age] years old, his parents separated. He said he went to school in [Country 1] and he can speak Chinese. He said his mother is ethnically Chinese and his father is ethnically Chinese, and so he is also ethnically Chinese, but he grew up in [Country 1].
He said that he completed high school, and after he graduated high school, he went to Taiwan to work. He said he contacted his father in Taiwan, but only lived with him for a short time. He said he then went to work in [an industry] for about one year. After that, he said he worked in [a] factory for a couple of months, but he left that job because he wanted to set up his own restaurant. He said he had previously gained work experience in a restaurant when he lived in [Country 1], and he especially likes [Country 1] food.
The applicant then said in around 2010 or 2011, he set up a restaurant specialising in [Country 1] cuisine. He said his father gave him some financial assistance to set up the restaurant. He said that he didn’t have the restaurant for very long, and after about one and a half years he closed the restaurant. He said that the reason he closed the restaurant was because some people in a [Country 2] restaurant got some people to give him trouble. He claimed the people in the [Country 2] restaurant viewed him as an unwelcome competitor, and so they got some people to come to his restaurant and mess it up. He claimed that he was subjected to harassment and threats. He said that his mother, who had been in [Country 1], came to Taiwan to help him in the business.
When the Tribunal asked the applicant who harassed him, the applicant said that the mafia came and gave him trouble every two or three days, but he did not know what kind of mafia they were. He said the people who harassed him looked like mafia because they had tattoos on their bodies and spoke rudely.
When the Tribunal asked the applicant what specifically the mafia did to him, the applicant said that one time when he and his mother were at home, some people came to his house and harassed him. He claimed the people, who he claimed were mafia, forced him to sign a debt he did not owe. He said he was threatened with a machete, and he was very scared. He said he also saw a baseball bat, and this also made him scared. He said he did not see the faces of the people who came to his home because they came at night time. He said that he could not remember what date the incident happened, but that it happened in 2012. He said that he reported the incident to the police, but he did not go to the police station. Rather, he said that he knew some police, and when they came to the restaurant for a meal, he told them what had happened. He said the police to whom he spoke were his friends. He said he told the police that some men came to his house and threatened him and his mother with a knife. In respect to the document he signed, he said that he had no idea what sort of document he signed or what was written on it. He said that, later on, things became more serious and so he decided to close the restaurant. He said that in the later incidents the same four men would come to the restaurant and smash his property. He said that, after this incident, his mother went back to [Country 1] and he went to Australia. He said he came to Australia in order to work to pay back the debt he incurred because he signed the document that the mafia forced him to sign. He said his debt is [amount] Taiwanese dollars. However, the applicant said he never actually borrowed any money from the mafia, but rather he owed the money because he signed the document. The applicant said he left Taiwan and came to Australia in 2013, but then after two years he returned to Taiwan in order to start a business again but people started looking for him again and so he came back to Australia in 2015. The applicant said the people who were looking for him in Taiwan never found him, but nevertheless he decided to leave Taiwan again and come back to Australia. The applicant said there was no other reason he left Taiwan, just that he left Taiwan because he was afraid of the mafia and that they would find him if he stayed in Taiwan.
The applicant then made admissions that he prepared his own protection visa application and he typed out the application himself. He indicated that no other person helped him with the application but he did access the online translation tools on the internet. He said he signed his protection application.
The Tribunal spoke to the applicant about his passports. The applicant said he had a [Country 1] visa in his Taiwanese passport to visit his mother in 2015. He said his [Country 1] passport has expired and he has not renewed it. The applicant made admissions that he had been in Australia from 2013 to 2015 and that he did have sufficient time to renew his [Country 1] passport. The applicant indicated that he had no other information to provide that he was a [Country 1] citizen. The Tribunal put to the applicant that even though the applicant was born in [Country 1], the Tribunal may not accept that he is a citizen of [Country 1]. The applicant said he did not know how to reply to the issue, and said he did not have any further documentation.
The Tribunal spoke to the applicant about the responses he gave to some of the questions in his written protection visa application. The Tribunal put to the applicant that at question 22 of his protection visa application, when asked if he was a current citizen or a national of any other country (other than Taiwan), he ticked “no”, and that he stated that both his mother and father were citizens of Taiwan – not any other country. The Tribunal put to the applicant that in response to question 23 (Have you previously been a citizen or national of any other country?) he ticked “no”, in response to question 24 (Have you ever been refused, renounced or rescinded citizenship of any country?) he ticked “no”, and in response to question 25 (Do you have the right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?) he ticked “no.” The Tribunal put to the applicant that the Tribunal may find that he had not given credible information in respect to his claim to be a citizen of [Country 1], and may not accept his claim that he is a citizen of [Country 1]. In response, the applicant was evasive and hesitant, and indicated that this was his understanding at the time he completed the form.
The Tribunal also put its concerns to the applicant about his responses to questions in his written protection visa application about his visa and travel history. The Tribunal put to the applicant that in response to question 60 (Have you been to Australia before?) he ticked “no”, and in response to question 69 (Have you departed and re-entered Australia since your first arrival?) he ticked “no” and in response to question 70 (Have you returned to your home country since arriving in Australia?) he ticked “no”.
The applicant then said that he had another name. He said his other name, a [Country 1] name, is [Alias 1], born [date]. He then claimed that he changed his name in 2015. He said that up until 2015 he went by the name of [applicant’s name], but then in 2015 he changed his name to [Alias 1] while he was in Taiwan in 2015.
The Tribunal then put its concerns to the applicant about his responses in his written protection visa application, including at question 9 (Have you ever been known by other names (Including name at birth, name before or after marriage, adoptive or foster name, alias or pseudonym, cultural or tribal name or clan, preferred name, other spellings of name)?) he ticked “no”. In response, the applicant said that he was using his current name and that was why he hasn’t used his other name.
The Tribunal put to the applicant that in the hearing he said that he grew up in [Country 1] and went to school in [Country 1], and that he did not go to Taiwan until he was about [age] years of age, but in his written protection visa application he wrote that he went to school in Taiwan from [year] to [year]. The Tribunal put to the applicant that it may find that he had not given credible information about where he had grown up or where he had undertaken his education. In response, the applicant said he studied in [Country 1] and this was certified by Taiwan.
The Tribunal put to the applicant that in the hearing he said that he initially worked in [an industry], and then in [a] factory and then he set up his own restaurant in 2010 or 2011, and then closed his restaurant in either 2012 or 2013, but in his written protection visa application he indicated that the only employment experience he had was being self-employed in a restaurant from February 2013 to March 2014. The Tribunal put to the applicant that it may find that he had not given consistent information about his employment history and may find that he had not given credible information about his employment history. In response, the applicant was hesitant and then ultimately responded that he wrote his answer according to his translation.
The Tribunal put to the applicant that in the hearing he said that he grew up in [Country 1], but in his written protection visa application he wrote that from [year](when he was born) to March 2015 he lived in Taiwan. The Tribunal put to the applicant that it may find that he had not given consistent information about his previous addresses and may find that he had not given credible information about his previous addresses. In response, the applicant said his English is not good.
The Tribunal asked the applicant whether he had ever been convicted of a crime, and in response he said “no.” However, the Tribunal put to the applicant that in his written protection visa application in response to question 86 (Have you been found guilty or convicted of a crime or any offence in any country?) he ticked “yes” and stated that he had received two convictions in Taiwan in 2015 ([January] 2015 and [February] 2015): “I was detained because of refusing to sell the restaurant on lower price.” The Tribunal put to the applicant that it may find that he had not given consistent information about his criminal history and may find that he had not given credible information about his criminal history. In response, the applicant said because he completed the form himself, he did not understand the question.

The Tribunal put to the applicant its concerns that he had not given credible information about his protection claims. The Tribunal put to the applicant that in the hearing, the applicant never even remotely claimed to have suffered “government persecution because he exposed the officials of Zhongli City, Taoyuan County, colluding with the mafias.” The Tribunal put to the applicant that in the hearing he claimed that the incident where he claimed to have been threatened by the mafia happened in 2012, but in his written claims he stated the incident occurred in 2014.
The Tribunal put to the applicant that in the hearing he claimed that he had been threatened with a machete and he saw a baseball bat, but in his written claims he stated that he had been threatened with knives.
The Tribunal put to the applicant that in the hearing he claimed that he reported the incident to the police, but he did not go to the police station. Rather, he said that he knew some police, and when they came to the restaurant for a meal, he told them what had happened. He said the police to whom he spoke were his friends. He said he told the police that some men came to his house and threatened him and his mother with a knife. However, in his written claims he stated his family immediately called the police, and the police came in about half an hour. He wrote that the police did not stop “the mafia” and said that the applicant had made a false report.
The Tribunal put to the applicant that in the hearing he went back to Taiwan in 2015 but he never saw the people he thought were looking for him, which was very different to his extensive written claims where he wrote that on [date] January 2015 he distributed protest letters to citizens in front of the Zhongli City Government. He wrote that police arrested him and took him to the Zhongli City Detention Centre. He wrote that, while he was in detention, he held a hunger strike for four days, but that on the third day he was force-fed. He wrote that when he was released the police told him “No one can help with your case. Do not come here to pass out flyers. If you come here again, we will kill you.” He wrote that he nevertheless pasted protest letters on the wall at night time. He wrote that on [date] February 2015, around [time], police came to his house, and again he was taken to Zhongli City Detention Centre. He claimed that after he arrived at the detention centre, a criminal inmate named “[Mr A]” dragged him by his hair, beat him and pinched him. He claimed that there was a vicious murderer with the last name [name], who repeatedly tried to beat him to death. Again, he claimed that when he held a hunger strike, he was force-fed. He claimed that more than ten people force-fed him at once, spilling food paste all over him and injuring his mouth. He claimed that the guards also instructed other inmates to force-feed him. He claimed he was force-fed once a day. He claimed that after three times they were not able to get food into his stomach anymore, so they inserted a tube through his nose. He claimed that the inmates in his cell force-fed milk powder to him every day. He claimed that the hunger strike lasted for six days. He claimed that the police asked him to write a “guarantee” that he would “give up” the protest. He claimed that someone with the last name of [Name 1] and several others told him to sign a statement, but he refused. He claimed that, in the afternoon, he was tortured in a technique called “splitting the legs”, where several people pushed his legs apart 180 degrees. He claimed that it was so painful that he passed out. He claimed that later he was given a pen to write a statement, but he threw the pen away. He claimed he was then made to squat until 5 or 6pm that day. He claimed he would not write anything because he believed in fairness and justice. He claimed he had fevers and lost consciousness. He claimed he was taken to hospital, where the doctors said he was not sick, but later, “someone” heard the doctors telling the police that his intestines had severe problems. He claimed that police still forced him to work. He claimed that once he had a fever of over 39 degrees, but after he went back to the dorm and his temperature went down a bit, the police forced him to go back to work. He claimed this situation lasted for about two weeks. He claimed that the police planned to take him to the Zhongli City Prison, but they did not do it since his health was extremely poor, and the doctors said he had severe intestinal problems and had only months to live. He claimed he was released on [date] February 2015. He claimed that police told him that he disrupted social order, and he would be sentenced if he “got caught” next time. He claimed the “mafias” came to his home and threatened him. He claimed the “mafias” wanted to punish him. He claimed that because he did not want to hurt his family, he prepared to go abroad after his recovery. He claimed that in March 2015, he went to [Country 1], where he found that there was a close relationship between [Country 1]’s “mafias” and Taiwan’s “mafias” and so he went to Australia.
When the Tribunal put to the applicant that it may find that he had not provided credible information in respect to any of his protection claims, whether the claims made at the hearing or in writing, he responded that he wrote part of the claims himself and then he found a lawyer online who helped him.
The applicant said he had no further submissions to make and he was satisfied that he had raised all of the claims he wished to make to the Tribunal.
Analysis and findings
The Tribunal has carefully considered the applicant’s claims and the evidence available to the Tribunal in respect to those claims. The Tribunal holds great concerns about the applicant’s credibility. Indeed, the Tribunal is not satisfied that the applicant has given credible information in respect to his protection claims. The Tribunal finds that the applicant gave inconsistent information on multiple grounds.
Firstly, in respect to the issue of the applicant’s identity and citizenship, the Tribunal accepts that the applicant’s name is [applicant’s name] born [date]. The Tribunal accepts that the applicant’s alias is [Alias 1]. Based on the copy of his Taiwanese passport that the applicant provided to the Department, the Tribunal accepts that the applicant is a citizen of Taiwan. However, given the applicant’s responses to questions 22, 23, 24 and 25 as stated above, the Tribunal does not accept that the applicant is a citizen of [Country 1]. Therefore, the Tribunal finds that the applicant’s receiving country is Taiwan.
However, as indicated above, the Tribunal is greatly concerned about the multiple instances of inconsistent information that the applicant provided.
The Tribunal finds that the applicant gave inconsistent information in respect to his visa and travel history, where in response to question 60 (Have you been to Australia before?) he ticked “no”, and in response to question 69 (Have you departed and re-entered Australia since your first arrival?) he ticked “no” and in response to question 70 (Have you returned to your home country since arriving in Australia?) he ticked “no”, but in the hearing the applicant said he came to Australia in 2013 before returning to Taiwan in 2015 and then came back to Australia in 2015. The Tribunal is not satisfied by the applicant’s explanation for the inconsistent information he provided in this respect and finds that the applicant did not give credible information in this respect.
The Tribunal finds that the applicant gave inconsistent information in respect to his education, where he said to the Tribunal that he grew up in [Country 1] and went to school in [Country 1], and that he did not go to Taiwan until he was about [age] years of age, but in his written protection visa application he wrote that he went to school in Taiwan from 1994 to 2003. The Tribunal is not satisfied by the applicant’s explanation for the inconsistent information he provided in this respect and finds that the applicant did not give credible information in this respect.
The Tribunal finds that the applicant gave inconsistent information in respect to his work history, where in the hearing he said that he initially worked in [an industry], and then in [a] factory and then he set up his own restaurant in 2010 or 2011, and then closed his restaurant in either 2012 or 2013, but in his written protection visa application he indicated that the only employment experience he had was being self-employed in a restaurant from February 2013 to March 2014. The Tribunal is not satisfied by the applicant’s explanation for the inconsistent information he provided in this respect and finds that the applicant did not give credible information in this respect.
The Tribunal finds that the applicant gave inconsistent information in respect to his previous addresses, where in the hearing he said that he grew up in [Country 1], but in his written protection visa application he wrote that from [year] (when he was born) to March 2015 he lived in Taiwan. The Tribunal is not satisfied by the applicant’s explanation for the inconsistent information he provided in this respect and finds that the applicant did not give credible information in this respect.
The Tribunal finds that the applicant gave inconsistent information in respect to his criminal history, where in the hearing he claimed he had never been convicted of any offences but in his written claims he wrote that he had received two convictions in Taiwan in 2015. The Tribunal is not satisfied by the applicant’s explanation for the inconsistent information he provided in this respect and finds that the applicant did not give credible information in this respect.
The Tribunal finds that the applicant gave inconsistent information in respect to his protection claims. In particular, the Tribunal finds the applicant gave inconsistent information about the alleged threats made to him by mafia or anyone else. The Tribunal is not satisfied that the applicant gave credible evidence about his claim that he was harassed by the mafia or anyone else, whether it be at a restaurant or at his home at any time he was in Taiwan.
The Tribunal is not satisfied that the applicant gave credible evidence about his claim that he was threatened with a machete or knives or a baseball bat, or any other weapon.
The Tribunal is not satisfied that the applicant gave credible evidence about his claim that he reported the incident to the police. In particular, the Tribunal finds that the applicant gave inconsistent evidence on this point where in the hearing he claimed that he did not go to the police station but rather he knew some police, and when they came to the restaurant for a meal, he told them what had happened. This evidence at hearing is in contradiction to his written claims that his family immediately called the police, and the police came in about half an hour, and that the police did not stop “the mafia” and said that the applicant had made a false report.
The Tribunal is particularly concerned about the credibility of the applicant’s claims about what allegedly occurred to him in 2015 when he returned to Taiwan, where in the hearing the only claims he made were that when he went back to Taiwan in 2015 he never saw the people he thought were looking for him. The Tribunal finds that the applicant’s claims in the hearing in this respect are vastly different to the exaggerated and embellished written claims he made in his written protection application as detailed above.
In summary, when considered individually and cumulatively, the Tribunal does not accept that any of the applicant’s protection claims, either the claims made at the hearing or in the written application, are credible. The Tribunal specifically does not accept that the applicant was ever threatened or harmed by the mafia or anyone else in Taiwan. The Tribunal specifically does not accept that the applicant was ever subjected to the alleged behaviour by the Taiwanese authorities either on his return to Taiwan in 2015 or at any other time.
The Tribunal does not accept that the applicant ever suffered “government persecution because he exposed the officials of Zhongli City, Taoyuan County, colluding with the mafias.” The Tribunal does not accept that the applicant ever distributed protest letters, or was arrested or detained by the Taiwanese authorities, or that he was ever on a hunger strike, or that the Taiwanese authorities told him they would kill him, or that he was abused by anyone when he was in detention or prison, or that he was ever force-fed by the Taiwanese authorities, or that he signed a “guarantee” that he would “give up” the protest, or that he was ever tortured by the Taiwanese authorities, or that he became ill whilst in detention, or that he was ever hospitalised due to mistreatment by the Taiwanese authorities. In short, the Tribunal finds that all of the applicant’s claims of alleged harm or abuse or mistreatment at the hands of any person in connection to any mafia or criminal organisations or any person in connection to the Taiwanese authorities to be not credible in their entirety.
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). 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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
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.
…

[2022] AATA 2026

11 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction