1720194 (Refugee)

1720194 (Refugee) [2023] AATA 2352 (18 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1720194
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:L. Symons
DATE:18 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 May 2023 at 3:24pm
CATCHWORDS
REFUGEE – Protection visa – Taiwan – applicant didn’t attend hearing – member of religious organisation – delay in applying for protection in Australia – limited evidence provided – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 91, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 August 2017 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Taiwan, arrived in Australia on [date] June 2015 as the holder of a subclass 417 Working Holiday visa that was valid until [date] June 2016. She subsequently applied for and was granted a second subclass 417 Working Holiday visa on 11 May 2016 which was valid until 11 June 2017.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 31 May 2017. She was granted an associated Bridging A visa on 11 July 2017. The delegate refused to grant the visa on the basis that she is not a person in respect of whom Australia has protection obligations. On 1 September 2017, she applied to the Tribunal for a review of that decision.
On 5 March 2023, a Tribunal officer wrote to the applicant and advised her that her file was being prepared to give to a Tribunal Member. She was requested to complete an enclosed Pre-Hearing Information Form and return it to the Tribunal within 7 days. The letter was sent to her by email on 5 March 2023. On 6 March 2023, she sent the Tribunal the completed Pre-Hearing Information Form.
In the Pre-Hearing Information Form, the applicant stated that she did not want to have a hearing and consented to the Tribunal making a decision on the papers without inviting her to a hearing for her case. The form was signed by her on 5 March 2023. In these circumstances, the Tribunal will not invite her to attend a hearing and will proceed to make a decision on the review based on the documentary evidence before it.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
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-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.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 AND FINDINGS
The applicant’s claims in her application for a Protection visa are summarised as follows:
·She was born on [date] in New Taipei in the Republic of China (Taiwan) and she is a citizen of the Republic of China.
·She was once a member of a religious organisation called [Organisation 1]. She was strictly controlled by this organisation and her personal liberty was limited by it. She could not chose her own spouse and was obliged to make greater and greater contributions to that organisation or she would have been discriminated against by others, punished or confined by the organisation.
·She became a slave of [Organisation 1]. One of her friends tried to quit the organisation but was confined by them. He all but lost his life. She had no right to quit. If she did, her family members would have become involved as there was a guarantee mechanism between family members. Her close friends would also have alienated her. Public opinion, religious discipline and the “collective nonchalance” would have made her a “deserted child of the society”.
·She has nowhere to air her grievances on such a tiny island. The government does not take care of such trifling things. The pressure society placed on her was too great for her. To defend her human rights and freedom she fled to Australia to file an application for protection in order to be relieved of religious oppression and live a free life.
The applicant provided the Department with a copy of her Republic of China (Taiwanese) passport issued [in] 2014 and valid until [2024].
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 7 August 2017. She has not filed any other supporting evidence with the Tribunal.
Receiving Country
The applicant claims to be a citizen of the Republic of China (Taiwan) and has provided a copy of her Republic of China passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of the Republic of China (Taiwan). The Tribunal finds that the Republic of China (Taiwan) is the receiving country for the purpose of assessing her claims for protection under the refugee criterion and the complementary protection criterion.
Third Country Protection
The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has the right to enter and reside in any country than her country of nationality.
Assessment of Claims
The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself/herself in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision maker is not required to make the applicant's case for him/her. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In this case, the applicant's claims are made in the most general terms and they are unsubstantiated. She has not filed any documentary evidence with the Department or the Tribunal to support her claims. As she did not want to have a hearing and consented to the Tribunal making a decision on the papers without inviting her to a hearing, the Tribunal is unable to obtain further details of her claims and to test their veracity.
If the applicant had attended the hearing, the Tribunal would have discussed with her when she became a member of [Organisation 1] and what that involved. The Tribunal would have ascertained whether her parents, other family members and friends were also members of this organisation and what their attitude was in relation to her relationship with [Organisation 1]. The Tribunal would have clarified with her what type of contribution she made to [Organisation 1] and how they could punish or confine her. The Tribunal would have also asked her in what way “others” could have discriminated against her and how she could have become a “deserted child of the society”.
If the applicant had attended the hearing, the Tribunal would have discussed with her how she was strictly controlled, her personal liberty limited and she became a slave of [Organisation 1] particularly in view of her evidence in her visa application that she lived at the same address in Taipei city from birth until she left home to travel to Australia, left Taiwan to travel to [Country 1] in 2014 and left Taiwan to travel to Australia in 2015. The Tribunal would have sought further information about her travel to [Country 1], whether she applied for protection in [Country 1] (and if not, why not) and why she returned to Taiwan in 2014.
If the applicant had attended the hearing, the Tribunal would have asked her whether she lodged a complaint against [Organisation 1] or sought protection from the Taiwanese authorities. In view of her claim that she fled to Australia to file an application for protection, the Tribunal would have discussed with her why she delayed applying for protection in Australia considering that she arrived in Australia on [date] June 2015 and did not apply for protection until 31 May 2017. The Tribunal would have discussed relevant country information with her.
On the limited evidence before it, the Tribunal is not satisfied that the applicant was a member of [Organisation 1] in Taiwan. It follows that the Tribunal does not accept any of her claims that flow from that. The Tribunal is not satisfied that she left Taiwan for the reasons claimed or that she fears returning to Taiwan for the reasons claimed.
On the evidence before it, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant, for the reasons claimed, if she returns to Taiwan now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the refugee criterion?
On the limited evidence before it and in view of the above findings, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of her religion or any other reason set out in s.5J(1)(a) of the Act, that there is a real chance that she would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of Taiwan. Therefore, she does not meet the definition of refugee as set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
On the limited evidence before it and in view of the above findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that she will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
CONCLUSION
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) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

DECISION

The Tribunal affirms the decision not to grant the applicant a Protection visa.
L. Symons
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.
…

[2023] AATA 2352

18 May 2023

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