1715703 (Refugee)

1715703 (Refugee) [2017] AATA 2895 (15 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715703
COUNTRY OF REFERENCE:                  Taiwan
MEMBER:Christopher Smolicz
DATE:15 November 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 15 November 2017 at 2:15pm

CATCHWORDS
Refugee – Protection Visa – Taiwan – Fear of violence – Criminal gangs – Witness credibility – Vague and inconsistent evidence
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 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 [in] July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Taiwan, applied for the visa [in] October 2015.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee or complementary protection criteria because he fears harm from criminal gangsters in Taiwan.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is [age] years old. He declared that he was a Taiwanese citizen. He arrived in Australia [in] April 2013 as the holder of a [temporary] visa. The visa was valid until [April] 2014.
[In] April 2014 the applicant was granted a second [temporary] visa which was valid until [April] 2015.
The applicant departed Australia [in] April 2015 and returned to Taiwan. He returned to Australia [in] August 2015 as the holder of [a different temporary visa]. The visa was valid until [November] 2015.
The applicant applied for the protection visa [in] October 2015.
He travelled to Australia on a passport issued by Republic of China (Taiwan). The Tribunal has assessed the applicant’s claims against Taiwan as the receiving country.
Summary of substantive claims
According to the applicant’s protection visa application he claims to work for [a business] in Taiwan. He claims that in the course of his job he discovered the activities of underworld criminal gangsters which he intended to make public. After the gangsters became aware of his plans they started monitoring him and his parents. He claims his parents were harassed and assaulted. He claims he was physically assaulted. He claims the gangsters are associated with the police. He can’t relocate to another part of Taiwan because the gangsters have influence around Taiwan. When he returned to Taiwan the gangsters continued to harass and watch him. He can no longer work for the [business] for fear of exposing himself to the gangsters.
Findings
The Tribunal has had regard to the applicant’s evidence regarding his reason for coming to Australia and the circumstances in which he lodged the protection visa application. Having considered all of the evidence, the Tribunal does not accept any of the applicant’s claims. The Tribunal does not accept that the applicant is a credible witness and finds that he has manufactured the entirety of his claims regarding his experiences in Taiwan and his reasons for seeking protection.
The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.
The Tribunal found the applicant’s evidence vague, inconsistent and lacking in credibility.
The Tribunal questioned the applicant about his employment in Taiwan. The applicant said he worked in the entertainment business. The Tribunal asked the applicant on a number of occasions to expand on his evidence. The applicant said he was in charge of [details of occupation]. After further questioning he claimed he [had other responsibilities]. He claims he worked in [a number of different areas]. He had difficulties explain his business title. After further questioning he said he was operating under a team leader. He could not provide a business card or any documentary evidence regarding his employment in Taiwan.
The Tribunal questioned the applicant about the period of his employment. The applicant said he worked in the [business] from 2013 to 2015. The Tribunal notes that he first arrived in Australia in April 2013 and asked him how he could work in the business when he was in Australia. The applicant subsequently said he started to work in the business before he came to Australia.
The Tribunal noted that his qualifications (Bachelor of [major]) were completely different from his area of work. The applicant said that he got the job through a friend. The Tribunal asked the applicant what skills enabled him to get the job. He said he had no other relevant experience but he could sing and his friend gave him the job.
The Tribunal found the applicant’s evidence about his employment in the entertainment industry in Taiwan vague and lacking in detail. The Tribunal does not accept the applicant worked in the entertainment industry as claimed.
The Tribunal asked the applicant on a number of occasions why he travelled to Australia in April 2013. The applicant said that his boss borrowed money from gangsters and he (his boss) disappeared. The gangsters approached him (the applicant) because they thought he would know where his boss was. He could not recall when the gangsters approached him. After further questing he said it was in 2014. The Tribunal noted that he was in Australia in 2014.
The Tribunal questioned the applicant about the loan. The applicant could not tell the Tribunal how much money his boss had borrowed or when the boss borrowed the money but claims it was a long time ago.
The Tribunal asked the applicant why the gangsters would be searching for him in circumstances when he had nothing to do with the loan. The applicant said the gangsters thought he would know where his boss was. The Tribunal finds that the applicant was unable to provide any explanation why he would be of interest to the gangsters. The applicant provided no evidence about what information he uncovered about the gangsters which he wanted to make public.
The Tribunal finds the applicant written claims are significantly different from his oral evidence at the hearing. For example, according to the applicant’s written claims he was pursued by the gangsters because he was going to make public their activities on [details of plan]. In his written claims he makes no reference to his boss taking out a loan.
The Tribunal also finds the applicant declared in his written claims that he was physically assaulted by the gangsters. At the hearing the applicant said he was never physically harmed.
When the inconsistencies were put to the applicant at hearing he said that his friend helped him complete the application and there may have been problems translating his claims into English. The Tribunal accepts that applicants from non-English speaking countries can experience language difficulties and can often expand on their written claims at the hearing. The Tribunal notes however that the applicant’s evidence at the hearing is completely different from his written claims. Having considered the applicant’s evidence the Tribunal finds that the applicant manufactured the claims and he did not have any trouble with criminal gangsters in Taiwan because his boss took out a loan or because he (the applicant) was intending to make public the activities of underworld criminal gangsters [details of plan].
The applicant also claims he went to the police and they investigated the matter but could not do anything. He could not however tell the Tribunal what he told the police or why they could not take any action.
The Tribunal finds that country information referred to in the delegate’s decision confirms that Taiwan has an effective and well-regarded National Police Administration (NPA) that are actively dealing with organised crime and gang-related activities. The NPA’s Criminal Investigation Bureau (CIB) has an Anti-Organized Crime Division which is in charge of the implementation of a number of dedicated operations targeting organized gangs and criminal syndicates.[1] The Tribunal notes that the delegate’s decision refers to a number of recent media reports which illustrate action taken by the Taiwanese authorities in combating organised crime.[2] Country information also confirms that the Organized Crime Prevention Act has been instrumental in combatting organized crime.[3] Country information confirms that although there remains some corruption in the judicial system, trials are considered to be fair and the judicial system is independent.
[1] Anti-Organized Crime Affairs’ 2015, 刑事警察局Criminal Investigation Bureau website, last updated 25 May < <CISEC96CF14279>
[2] See Pan J 2016, ‘Alleged gang members arrested’, Taipei Times, 7 January < <CX6A26A6E707
[3] ‘Is Taiwan’s Organized Crime Receding or Going Deeper Underground?’, Tim Ferry, American Chamber of Commerce in Taipei, 24 May 2016, CIS38A80122174
The Tribunal questioned the applicant why he would return to Taiwan in 2015 if he feared persecution. The applicant said he was talking to friends about the whereabouts of his boss. After further questioning he said he returned to Taiwan to visit his family. The Tribunal asked the applicant why he waited two and half years before he applied for the protection visa. The applicant said he was waiting for information but could not expand on his evidence and it is unclear what information he was waiting for.
The Tribunal found the applicant’s explanation vague and lacking in credibility. The Tribunal would have expected the applicant to have applied for a protection visa soon after he arrived in Australia if he had a genuine fear of persecution in Taiwan. The Tribunal also finds it inconsistent that the applicant would voluntarily return to Taiwan in April 2015 if feared criminal gangsters.
Having considered the claims and evidence, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm from criminal gangsters if he returns to Taiwan now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution in Taiwan.
The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions. As detailed above, the Tribunal does not accept any of the applicant’s claims regarding his experiences in Taiwan or his reasons for leaving Taiwan. For the same reasons as those set out above, the Tribunal does not accept that the applicant or his family were threatened by gangsters or that there is a real risk that he will be subject to harm from criminal gangsters or any other persons upon his return to Taiwan.
Accordingly, 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 that there is a real risk that he will suffer significant harm, including arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment.
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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
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 2895

15 November 2017

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