1801455 (Refugee)

[2023] AATA 4829

1801455 (Refugee) [2023] AATA 4829 (8 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  1801455

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Mr S Norman

DATE:8 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 08 December 2023 at 9:55am

CATCHWORDS
REFUGEE – protection visa – Taiwan – decision made on papers – political opinion – protested against mainland Chinese company – tainted products – detention – physical assault – corruption of Taiwanese government – no evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 426A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 January 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants who claim to be citizens of Taiwan, applied for the visas on 2 August 2016. The Department delegate’s decision was lodged with the Tribunal. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

2. 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).

3. 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.

   Mandatory considerations

4. 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

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

6. By hearing invitation letter dated 6 December 2023 (dispatched by email to the authorised recipient), the Tribunal advised the applicants it had considered all the material before it relating to their application, but it was unable to make a favourable decision on that information alone.

7. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 26 March 2024.

8. The applicants were also advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice.

9. Attached to their subsequent agent email dated 7 December 2023, was a signed Tribunal ‘Response to hearing invitation’ form – dated ‘14/12/2023’ (sic).

10. That advised that neither applicant would ‘participate in the hearing, and consent[ed] to the Tribunal making a decision on the papers without taking further steps to allow [them] to appear’.

11. In the circumstances, and after considering the evidence, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

    The applicant’s claims:

12. In their written Protection visa (PV) form, and by statement dated 28 July 2016,[1] the applicant wife claimed:

    [1] PDF – from p.24 (‘PDF’ refers to the merged Department file on the Tribunal Casemate database).  

    ·     She and her husband owned/operated a small [business] in Taiwan

    ·     In early 2010, they found that the [product] they had purchased from a purported reputable supplier ([Company 1]) [was] strange and they were forced to close their [business] after customers complained

    ·     This [product] was sold to nearly a thousand [businesses]

    ·     In early 2013, the Taiwanese police ascertained that [Company 1] had sold tainted [product] to multiple [businesses]

    ·     In early June 2014, the applicant and other business-people had protested to the [County] Government and demanded compensation. They believed that the [Company 1] had shareholders from mainland China who had bribed Taiwanese officials in an attempt to avoid justice

    ·     on the evening of 9 July 2014, over a dozen police officers entered the applicants’ home by force. They presented two documents – ‘Permission to Search’ and a ‘Summons’. However, the applicant said there were no official stamps to prove the documents’ legality

    ·     the police then conducted a search and took the applicant/s to the police department, and had threatened them when they objected

    ·     The applicant/s were later sent to a detention centre

    ·     The police had failed to deliver a letter the applicant wife wrote to appeal her claimed illegal detention. They had told her that ‘nobody cares about your complaints. No one can handle a [Company 1] case at this point. Do you understand how the government deals with it? [and] the mainland regal (sic) are behind [Company 1]. If you have done anything related to it, no matter how little, you will be sentenced to as many years as they wish. There is nowhere for you to appeal. You had better stay here’

    ·     the applicant then began a hunger strike

    ·     on 13 July 2014 at around 3 PM, three drunk guards dragged the applicant into the guard duty room where they hit her with electric batons and punched her for about half an hour. One named guard was the most ruthless. The applicant was bleeding from the mouth, her teeth were loose, her face swelled, she had blisters from the electric shocks, and she was dizzy and had ringing in her ears

    ·     the guards continued trying to pressure the applicant to give up her appeal and to eat

    ·     on the third day of her hunger strike, the applicant had removed her feeding tube. She was then taken to a hospital to have the tube re-inserted and there she reported the beating to the Division Head, but she was not believed

    ·     on 15 July 2014 (6 days after being detained), the applicant was returned to her home and her family took her to the hospital where she stayed for two weeks

    ·     the applicant claimed she could not live in Taiwan because the [Company 1] had hired gangsters to harass protesters

    ·     the applicant also could not return to mainland China because protestors there have been arrested. The applicant said that the ‘case had not ended and recently, she heard that protesters have been arrested and persecuted’

    ·     next, the applicant wife also claimed to have been convicted [in] July 2014, for ‘underground arrest for joining protest activities’[2]

    [2] PDF – p.47; p.81. 

13. By agent letter of 13 September 2023, the following was submitted:

    ·     The applicants would like to submit evidence of specific cases where individuals who protest against [Company 1] were harmed – no corroborating evidence subsequently lodged

    ·     the applicant wife case is unique

    ·     the applicant wife is persecuted for reason of her political opinion

    ·     the Taiwanese government is corrupt, and the legal system and police have limited capacity

    Assessing the applicant’s claims:

14. With the Department, the applicant wife had lodged a photocopy of the biodata page her Republic of China (Taiwan) passport (expiry date: XXX[3]); and the applicant husband lodged a copy of the biodata page of his Republic of China (Taiwan) passport (expiry date: XXX[4]). Based on the evidence, the Tribunal accepts the applicants are citizens of Taiwan and that Taiwan is there receiving country.

    [3] PDF – p.91.

    [4] PDF – p.96.

15. However, the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451).

16. That being said, the applicants did not provide sufficient detail to satisfy the Tribunal (ie) that they were impacted by the sale of tainted [products], and or that as a consequence they protested the sale, that they are or were of adverse interest to the Taiwan authorities or anyone else in Taiwan, and or that their home was raided or they were detained for any reason, and or that either applicant was convicted for ‘underground arrest for joining protest activities’.[5]

    [5] PDF – p.47; p.81. 

17. The Tribunal notes it remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). Importantly, and in relation to protection claims, it is ‘the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim’.[6] The Tribunal acknowledges that much of this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims. 

    [6] See s.5AAA of the Act, ‘Non-citizen’s responsibility in relation to protection claims’.

18. That said, based on the claims provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicants have a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Taiwan, there is a real risk they will suffer significant harm.

19. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicants have a real chance of suffering serious or significant harm in Taiwan.

    Finding:

20. For the reasons given above, the Tribunal is not satisfied the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

21. There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).  

    DECISION

22. The Tribunal affirms the decision not to grant the applicants protection visas.

    Mr S Norman
    Member