1716942 (Refugee) - [2020] AATA 823

1716942 (Refugee) [2020] AATA 823 (30 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1716942
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Meredith Jackson
DATE:30 March 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 March 2020 at 10:44am

CATCHWORDS
REFUGEE – protection visa – Taiwan – non-appearance before the Tribunal – SMS reminders failed to deliver – racism – tension between the opposing pan-green and pan-blue coalitions – Taiwan independence movement – tension in cross-strait relationships – delay in applying for protection – overstayed a previous visa – claims lack detail and unsupported by evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

1. 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 (the Act).

2. The applicant who claims to be a citizen of Taiwan applied for the visa on 27 April 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.

3. Her written claims, stated in summary, express a concern that, if she were to return to Taiwan now or in the reasonably foreseeable future, she would be beaten, injured or killed because racism is a prevalent threat in Taiwan and tensions between political factions in the national independence movement apply in all parts of the country.

4. The delegate refused to grant the visa on 7 July 2017 on the basis that the applicant does not have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and she does not face a real risk of significant harm if she returns to Taiwan. Therefore Australia’s protection obligations are not invoked. On 3 August 2017, the applicant applied for review of the protection visa refusal decision.

5. The applicant provided a copy of the visa refusal decision to the Tribunal with her application for review.

6. On 20 February 2020, the Tribunal wrote to the applicant at her provided email address advising that it had considered the material before it relating to the application but was unable to make a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1716942 (Refugee)

Details

AGLC: 1716942 (Refugee) [2020] AATA 823
Case: [2020] AATA 823
Decision Date: 30 March 2020

CaseChat Overview and Summary

The applicant, a citizen of Taiwan, sought review of a decision by the Refugee Tribunal to refuse their application for a protection visa. The applicant did not appear at the hearing before the Tribunal, and it was noted that SMS reminders sent to the applicant failed to deliver. The Tribunal's decision was under review by the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in affirming its previous decision to refuse the protection visa. This involved considering whether the applicant had established a well-founded fear of persecution based on their political opinion, specifically in relation to the political tensions in Taiwan between the pan-green and pan-blue coalitions and the broader cross-strait relationship with mainland China. The Court also had to consider the Tribunal's findings regarding the applicant's delay in applying for protection and their overstaying of a previous visa, and whether these factors, along with the lack of detail and evidentiary support for the applicant's claims, were properly taken into account.

The Court affirmed the Tribunal's decision, finding that the applicant's claims lacked the necessary detail and were unsupported by evidence. The Court accepted the Tribunal's reasoning that the applicant had not established a well-founded fear of persecution. The Tribunal's findings regarding the applicant's delay in applying for protection and the failure to provide sufficient evidence to substantiate their claims were upheld. The Court concluded that the applicant had not demonstrated that the Tribunal's decision was affected by error.

Orders