1717673 (Refugee)

1717673 (Refugee) [2024] AATA 1195 (9 January 2024)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717673
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Mark O'Loughlin
DATE OF DECISION:  9 January 2024
DATE CORRIGENDUM SIGNED:            1 March 2024
PLACE OF DECISION:  Adelaide
AMENDMENT:  The following corrections are made to the decision:
1. In Paragraph 39, there are two references made to Malaysia. It should read Taiwan.

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717673
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Mark O'Loughlin
DATE:9 January 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 January 2024 at 11:06am

CATCHWORDS
REFUGEE – protection visa – Taiwan – political opinion – involvement in student movement’s protests – arrested and threatened – delay in departing, return trip and delay in applying for protection – no information or supporting evidence provided in response to tribunal’s invitation and consent to decision without hearing – country information – movement’s transition into mainstream political participation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 18 July 2017, under s 65 of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister for Home Affairs decided to refuse to grant the applicant a protection visa. The applicant has applied to the Tribunal for review of that decision. The applicant has not provided the Tribunal with a copy of the delegate’s decision.
The applicant applied for the visa on 19 April 2017.
The applicant waived his right to a hearing and invited the Tribunal to consider the matter on the papers.
CRITERIA FOR A PROTECTION VISA
The relevant 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 must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.
S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. The applicant does not claim to be such a person and there is no evidence that he is.
The Tribunal finds that the applicant does not satisfy s36(2)(b) or (c).
Therefore, to succeed the applicant must satisfy either:
·s36(2)(a)- the “refugee criterion”, or
·s36(2)(aa)- the “complementary protection” criterion.
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 to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
Claims
The applicant set out his claims in the PVA (Protection visa application) he signed on 12 April 2017 at his answers to questions 88 to 96. The Tribunal summarises the claims in the PVA in this way:
·The applicant was involved in protests in March 2014 as part of the Sunflower Student Movement.
·The protests were about the trade pact with the People’s Republic of China and its likely negative impact on the Taiwanese economy.
·Many students in the protest were injured and the applicant was arrested.
·At the police station he was threatened by the police for engaging in the protests and he was made to feel unsafe.
·He left Taiwan and came to Australia after he was released because he did not feel safe in Taiwan.
·He came to Australia in July 2014 on a working holiday visa.
·He later heard that in May 2015 thirty-nine people were indicted for intruding into the cabinet complex as part of a protest against a trade pact between Taiwan and China.
·The applicant was afraid to return to Taiwan because he might be arrested.
·He did not believe he would find a safe place in Taiwan to which he could relocate.
·He did not believe the authorities would protect him.
Documentary Evidence
The applicant did not provide documents or other corroborative evidence in support of his claims.
Invitation to the Applicant to Comment or Respond to Information
On 9 August 2023 the Tribunal sent a letter to the applicant offering him the opportunity to respond to information which it considered would, subject to his comments or response, be the reason or part of the reason for affirming the decision under review.
The particulars of that information were:
·That the Sunflower movement, with which you say you were associated, was an important influence in reshaping Taiwanese politics and that many youthful
protesters of the Sunflower movement have remained energetically committed to several avenues of political activism since 2014 and have contributed to a model of how activists can transition from protests to conventional forms of political participation.
·A movement record obtained from the Department of Home Affairs shows that you did not arrive in Australia until July 2014, approximately 4 months after you say you were arrested in Taiwan; and
·That in October 2014, you applied for a TU-572 visa in Australia that was granted on 20 November 2014, and you did not apply for a Protection visa in Australia until 19 April 2017.
The letter advised the applicant that the first piece of information is relevant to the review because it suggests that people associated with the Sunflower movement have not been persecuted or harmed as he claims to fear he will be.
The second piece of information is relevant because it suggests he did not fear harm in Taiwan as claimed in his Protection application as he did not depart Taiwan until about 4 months after he claims he was arrested, despite holding a valid visa to travel to Australia.
The third piece of information is relevant because it suggests that he did not fear harm in Taiwan as he was content to stay in Australia on a temporary student visa and did not apply for a Protection visa in Australia until approximately 2 years and 9 months after his most recent arrival in Australia.
The letter further advised that, if the Tribunal relies on this information in making its decision, it may find that he did not experience harm in Taiwan as he claimed, or that he does not fear harm in Taiwan, or that there is not a real chance or a real risk of relevant harm in Taiwan.
The applicant was given until 23 August 2023 to respond. The Tribunal received an email from the applicant on 22 August 2023 thanking the Tribunal and advising that he does not have any additional information to provide.
Consideration of Relevant Information
The Tribunal has considered information in relation to the Sunflower Movement in Taiwan which the applicant claims to have been part of in March 2014.
In an article of 2 August 2018, Ming-sho Ho, a professor of sociology at National Taiwan University, considered the legacy of that movement[1]. In the second paragraph of that article he remarks that many of the protesters in the Sunflower Movement have gone on to play meaningful roles in mainstream politics in Taiwan.
[1] Carnegie Endowment for International Peace, ‘The Activist Legacy of Taiwan’s Sunflower Movement’ Ming-sho Ho August 2 2018.
There is no suggestion that being associated with the Sunflower Movement is likely to result in any form of relevant persecution or harm. The applicant has not presented any information to support his claim that he is at risk of arrest if he returns to Taiwan due to any association with the Sunflower Movement.
The Tribunal notes that the applicant held a visa to travel to Australia at the time he said he was involved in the Sunflower Movement protests. He had been granted a visa to travel to Australia on 18 February 2014 and had arrived [in] February 2014.
His movement record shows that that visa allowed multiple entries and the applicant returned to Taiwan [in] March 2014 and stayed there until 16 July 2014 when he returned using the same visa.
The applicant did not dispute the suggestion that the fact he had a visa to return to Australia but did not do so for about 4 months indicates he did not fear harm in Taiwan.
The applicant did not dispute that the fact that he did not apply for a protection visa for about 2 years and 9 months after arriving in Australia, during most of which time he was on a temporary Student visa suggests that he did not fear harm in Taiwan.
Consideration of Claims
The applicant claims to have been involved in protests as part of the Sunflower Movement in Taiwan in March 2014. The Tribunal is satisfied the applicant was in Taiwan at the time of the protests and it is possible that he was involved.
The applicant claims that students were injured in the protests. The Tribunal is satisfied that that is the case.
The applicant claims to have been arrested during the protests, although he does not provide any evidence of that. On balance, the Tribunal is not satisfied the applicant was arrested.
It follows that the Tribunal is not satisfied that the applicant was threatened by the police and made to feel unsafe while in the police station.
The applicant claims he found out from friends that in May 2015 39 people were indicted for intruding into the cabinet complex. He does not say there is any evidence of ongoing investigations into the protest events which were almost a decade ago. The Tribunal is satisfied that charges were laid but is not satisfied that further charges are likely to be laid.
Despite having been given the opportunity to do so, the applicant does not explain why, given he held a visa to return to Australia, he chose to stay for about 4 months after the protests despite his claim that he feared arrest and mistreatment at the hands of the Taiwanese police.
He does not explain why he did not seek protection sooner than he did despite being on a temporary visa. He does not explain why, when he did apply for a visa in October 2014 after returning from Taiwan, it was a temporary Student visa rather than a protection visa despite his claim to fear harm in Taiwan.
The Tribunal is not satisfied that the applicant fears arrest and mistreatment at the hands of the Taiwanese police if he returns to Taiwan as he claims.
S36(2)(a) - REFUGEE CRITERION
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. This is called the “refugee criterion”.
S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
The Tribunal has had regard to the applicant’s identity documents and is satisfied that the applicant is of Taiwanese nationality. Further, the Tribunal is satisfied that the applicant is outside Taiwan.
The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in Taiwan, which is the next part of the definition of “refugee” at 5H(1)(a).
S5J defines “well-founded fear of persecution”. S5J(1)(a)(b) and (c) establish prerequisites that must be satisfied to come within the definition. They provide respectively that the applicant will come within the definition if:
·The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”); and
·There is a real chance that, if the applicant returned to Malaysia he would be persecuted for one or more of the reasons mentioned in paragraph (a), and
·The real chance of persecution relates to all areas of Malaysia.
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.
The Tribunal has had regard to the very limited information the applicant has provided. The Tribunal is not satisfied the applicant fears arrest and mistreatment at the hands of the Taiwanese authorities.
The Tribunal is not satisfied the applicant fears being persecuted for a refugee reason (or for any other reason) in Taiwan.
The Tribunal is not satisfied the applicant has a ‘well-founded fear of persecution’ for the purposes of s5J.
Therefore the Tribunal is not satisfied the applicant comes within the definition of ‘refugee’ for the purposes of s36(2)(a) and is not, therefore, owed protection obligations under that provision.
Conclusion re Refugee Criterion
The applicant does not meet the definition of “refugee” in 5H(1) and does not come within S36(2)(a).
S36(2)(aa) - COMPLEMENTARY PROTECTION CRITERION
Although the applicant has been found not to meet the refugee criterion in s 36(2)(a), he may nevertheless be entitled to the grant of the visa if he meets s 36(2)(aa) (‘the complementary protection criterion’).
To meet S36(2)(aa) of the Act the applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of him being removed to Taiwan there is a real risk that he will suffer significant harm.
The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
S36(2A) provides as follows:
(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.
The Tribunal is not satisfied that the applicant will suffer harm if he is returned to Taiwan. In particular the Tribunal is not satisfied the applicant will be arbitrarily deprived of his life, that the death penalty will be carried out on him or that he will be subjected to torture. The applicant does not come within s36(2A) (a), (b) or (c).
S5(1) defines “cruel or inhuman treatment or punishment” as follows:
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 or the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The Tribunal is not satisfied the applicant will be subjected to cruel or inhuman treatment or punishment for the purposes of s5(1) if he is returned to Taiwan.
S5(1) defines “degrading treatment or punishment as follows:
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.
The Tribunal is not satisfied the applicant will be subjected to degrading treatment or punishment for the purposes of s5(1) if he is returned to Taiwan.
The Tribunal is not satisfied the applicant comes within s 36(2)(aa).
The Tribunal is not satisfied the applicant satisfies the Complementary Protection criterion.
Conclusions
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).
The Tribunal has found that the applicant does not satisfy 36(2)(b) or (c) 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O’Loughlin
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.
…

[2024] AATA 1195

9 January 2024

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Immigration

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