1805896 (Refugee)

[2024] AATA 1393

1805896 (Refugee) [2024] AATA 1393 (3 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1805896

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Mr S Norman

DATE:3 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 April 2024 at 11:30am

CATCHWORDS
REFUGEE – protection visa – Taiwan – threats by creditors/debt collectors seeking to recover debts owed by late father – fear of being forced to join Taoism by mother – verbal and physical abuse, anxiety and depression – insufficiently detailed claims and evidence – no response to hearing invitation or appearance at hearing – applicant’s responsibility to specify particulars and provide evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 426A
Migration Regulations 1994 (Cth),

CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
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 9 February 2018 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, applied for the visa on 4 October 2017.

2. The Department delegate’s decision was lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA          

3. 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).

4. 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

5. 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

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

7. By hearing invitation letter dated 6 December 2023 (dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to her application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing commencing at 10:30am on 3 April 2024.

8. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice.

9. The Tribunal also sent a SMS hearing reminder text to the applicant shortly prior to the hearing.

10. Regarding the hearing, the applicant did not respond to the Tribunal hearing invitation letter, as she was invited to do. Neither did she attend the Tribunal at the day and time of the scheduled hearing.

11. Neither had the applicant responded to the Tribunal s.424(2) letter.

12. 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 applicant to appear before it.

    The applicant’s claims:

13. In support of her Protection visa, the applicant’s claims included:[1]

    [1] PDF – from p.68; and from P.108.

    ·     Her father passed away in 2008. The applicant was subsequently harmed by creditors/debt collectors seeking to recover debts owed by her father. She said she had been threatened (including death threats) by her father’s creditors/debt collectors  

    ·     She said the Taiwanese government do not care about her problems arising from the debt collectors or that her mother would force her to convert to Taoism - and will only be involved if she can pay them bribes

    ·     The applicant also said her mother is a gambler. Her mother also has numerous men coming and going from their house in Taiwan. The applicant finds her mother’s habits and influence causes her significant financial and psychological pressure - and the mother was verbally and physically abusive

    ·     the applicant has been unable to obtain help from family members and is therefore only able to reside with her mother in Taipei in order to subsist. The applicant fears her ability to subsist if she returns to Taiwan. However, when the applicant did relocate within Taiwan when she had lived with friend/s, she continued to be tracked by debt collectors

    ·     Also, the applicant fears her mother will force her to join Taoism - and the applicant claimed the Taiwanese authorities ‘were afraid of her mother to split the family over religion’[2]

    ·     the applicant also said the Taiwanese government do not care about her problems arising from her mother forcing her to convert Taoism

    ·     next, the applicant has been diagnosed with depression and anxiety since she was a teenager. The applicant continues to suffer from depression and anxiety due to her experiences growing up in, and her fear of returning to, Taiwan

    ·     next, the applicant claimed to have been teased at school in Taiwan because her parents did not participate in school activities and she did not make friends. One teacher believed she had a social and personality disorder. She went to a psychiatrist and later fled from her home. But she had to return due to economic pressures

    ·     the applicant commenced working at 15 years of age to earn a living and she was forced to stop studying

    Assessing the applicant’s claims:

    [2] PDF – P.68.

14. The applicant lodged a photocopy of the bio-data page of her Taiwanese passport with the Department.[3] Based on this evidence, the Tribunal accepts the applicant is a citizen of Taiwan, and that Taiwan is her receiving country. 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).

    [3] PDF – p.102, 234 (‘PDF’ refers to the merged Department file on the Tribunal CASEMATE database). 

15. That being said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that she was harmed by her father’s creditors/debt collectors, that she was harmed by her mother and or the mother’s behaviour, or that even if she was, why she could not safely and reasonably relocate within Taiwan given, amongst other things, that she has appeared to have been capable of fairly extensive international travel and residence.

16. 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). The Tribunal acknowledges 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.

17. Importantly, and in relation to protection claims, it is also ‘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’.[4]

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

18. That said, based on the claims she has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has 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 applicant being removed from Australia to Taiwan, there is a real risk that she will suffer significant harm.

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

    Finding:

20. For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

21. There is no suggestion 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

22. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Mr S Norman
    Member