1807943 (Refugee) - [2023] AATA 4546

1807943 (Refugee) [2023] AATA 4546 (28 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807943
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Peter Vlahos
DATE:28 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
This Statement was made on 28^th October 2023 at 7.30AM.
CATCHWORDS
REFUGEE – protection visa – Taiwan – membership of particular social group – homosexual woman – disgraced by family and discriminated against by neighbours – minimal supporting evidence – consent to decision without hearing – applicant’s responsibilty to specify claims and provide evidence – country information – LGBTI laws, effective police and independent judiciary – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5F(1)(a), 5J(1)(a), 5L, 36(2)(a), (aa), 65, 360(2)(b)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Applicant S v MIMA [2004] HCA 25
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
NABE v MIMA (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
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 dependants.
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 9 March 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 27 July 2017. The delegate refused to grant the visa on the basis that it did not satisfy sub-section 36(2) of the Act.
On 20 October 2023 the Tribunal wrote to the applicant informing her that she was invited to a hearing scheduled for 7 December 2023 at 9.00am to give evidence and present arguments relating to the issues arising in her application for Protection visa (and the subject of this review).
On 21 October 2023 the applicant wrote to the Tribunal requesting the Tribunal to consider her claims (case) on the papers and therefore, vacating her invitation to appear before the Tribunal to present her case, evidence and arguments.
Therefore, the Tribunal has thus determined this matter on the papers with the applicant’s consent, as provided for by s.360(2)(b) of the Migration Act, as amended.
The applicant provided no additional evidence with her correspondence to the Tribunal
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),…

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 1807943 (Refugee)

Details

AGLC: 1807943 (Refugee) [2023] AATA 4546
Case: [2023] AATA 4546
Decision Date: 28 October 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a woman from Taiwan. The applicant claimed she was a homosexual woman who had been discriminated against and persecuted due to her sexual orientation, including by her family and neighbours. She alleged that if returned to Taiwan, her family would falsely imprison her, deny her food and contact with others, and force her to change her sexual orientation, and that she would be beaten if she disobeyed. She also claimed that the police viewed her situation as a private family matter and that the Taiwanese authorities would not provide her with protection due to their belief that homosexuals were unlawful.

The primary legal issue before the Tribunal was whether Australia had protection obligations in respect of the applicant, pursuant to section 36(2)(a) (refugee criterion) and section 36(2)(aa) (complementary protection criterion) of the Act. This required the Tribunal to consider whether the applicant faced a real risk of significant harm if returned to Taiwan, and whether she met the definition of a refugee. A further issue was whether section 36(3) of the Act applied, which would be the case if the applicant had a right to enter or reside in another country.

The Tribunal affirmed the delegate's decision, concluding that Australia did not have protection obligations towards the applicant. The Tribunal accepted the applicant's identity as a national of Taiwan based on the provided passport copy and the absence of contrary evidence. It found that section 36(3) did not apply as the applicant had no right to enter or reside in any country other than Taiwan. Crucially, the Tribunal noted that the applicant had provided no supporting evidence to substantiate her claims of persecution or discrimination, either to the Department or to the Tribunal. The Tribunal also had regard to country information regarding LGBTI laws and community attitudes in Taiwan, but this did not overcome the lack of evidence from the applicant.

The Tribunal concluded that the decision under review should be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s record to the Tribunal with his application for review. Background – the Applicant’s migration and visa history [Redacted]EVIDENCE BEFORE THE TRIBUNAL Background – the Applicant’s Personal details The applicant noted that she was born on [Date], in New Taipei, New Taipei Province, Taiwan. The applicant provided no details of any family members currently living in Taiwan (no response provided in Q.42, Application Form). The applicant noted that she had received her primary and secondary education in Taiwan and had graduated from [College] (between September 2010 to June 2014). Her employment history while in Taiwan (see, Q.84 Application) between September 2011 to February 2013, sales ‘[Employer 1]’ and between February 2013 to August [2015], [Employer 2]. The applicant provided no other details on whether she was currently employed or whether she was attending to any studies while in Australia. The Applicant’s claims for Protection The Tribunal noted that the applicant made the following written claims in her application for Protection visa which was submitted to the Department and noted in summary form here, as follows:[1][1] Department of Home Affairs_ [deleted]_ PPV Application_ dated 20 July 2017 at pp. 32-34.§The applicant left Taiwan because she is a homosexual, and she was discriminated against and persecuted due to her sexual orientation. §If the applicant returns to Taiwan and fails to change her sexual orientation, her family will falsely imprison her and not allow her contact with others. She will not be provided with food and she will be forced to change her sexual orientation. Her freedom will be lost. Her family did this to her while she was in Taiwan.§If the applicant disobeyed her family’s instructions, she would be beaten up. §The applicant’s family regarded her as disgraceful, and she suffered all kinds of torture. §The applicant was also discriminated against by her neighbours. §The applicant claimed that she tried seeking help from the police, but they saw the issue as a family affair. She was told to resolve the problem in private. he left Taiwan with the help of friends. §Taiwan is a small place. No matter where the applicant runs, she will be discovered. §The applicant because of her sexual orientation will not receive protection from the government. The Taiwan authorities believe that homosexuals are unlawful and won’t provide her with any help. §If the applicant is forced to return to Taiwan, she will once again experience unfortunate things. The applicant will be discriminated against and persecuted in every aspect. §Laws are universal in Taiwan and relocation won’t change her circumstances. The Tribunal noted (referring to the Department File) that the applicant provided no supporting evidence to the Department with her Protection visa application Form, nor with her application for Review Form submitted to the Tribunal. COUNTRY INFORMATION _REPUBLIC OF TAIWAN_ GAY RIGHTS_LGBTI COMMUNITY IN TAIWAN_ LAW AND COMMUNITY ATTITUDES

Decision

Reasons for decision

The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of origins and identity There is no evidence before the Tribunal to indicate that any of the documents provided to the Tribunal by the applicant is a bogus document as is defined in section 5(1) of the Act. Based on a copy of the applicant’s Passport, which was provided to the Department of Home Affairs (the ‘Department’) and to the Tribunal (on file) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of Taiwan and has had her claims assessed against that country in relation to section 36(2)(a) and section 36(2)(aa) of the Act and on the basis of this evidence (before the Tribunal), the Tribunal further accepts and finds the applicant’s identity is as is claimed for the purposes of this decision. Protection in another country The Tribunal finds on the evidence before that the applicant does not have a right to enter or to reside in a country other than the Republic of Taiwan. Therefore, the Tribunal concludes and finds that section 36(3) of the Act does not apply to the applicant. Department File accessed by the Tribunal The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s record to the Tribunal with his application for review. Background – the Applicant’s migration and visa history [Redacted]EVIDENCE BEFORE THE TRIBUNAL Background – the Applicant’s Personal details The applicant noted that she was born on [Date], in New Taipei, New Taipei Province, Taiwan. The applicant provided no details of any family members currently living in Taiwan (no response provided in Q.42, Application Form). The applicant noted that she had received her primary and secondary education in Taiwan and had graduated from [College] (between September 2010 to June 2014). Her employment history while in Taiwan (see, Q.84 Application) between September 2011 to February 2013, sales ‘[Employer 1]’ and between February 2013 to August [2015], [Employer 2]. The applicant provided no other details on whether she was currently employed or whether she was attending to any studies while in Australia. The Applicant’s claims for Protection The Tribunal noted that the applicant made the following written claims in her application for Protection visa which was submitted to the Department and noted in summary form here, as follows:[1][1] Department of Home Affairs_ [deleted]_ PPV Application_ dated 20 July 2017 at pp. 32-34.§The applicant left Taiwan because she is a homosexual, and she was discriminated against and persecuted due to her sexual orientation. §If the applicant returns to Taiwan and fails to change her sexual orientation, her family will falsely imprison her and not allow her contact with others. She will not be provided with food and she will be forced to change her sexual orientation. Her freedom will be lost. Her family did this to her while she was in Taiwan.§If the applicant disobeyed her family’s instructions, she would be beaten up. §The applicant’s family regarded her as disgraceful, and she suffered all kinds of torture. §The applicant was also discriminated against by her neighbours. §The applicant claimed that she tried seeking help from the police, but they saw the issue as a family affair. She was told to resolve the problem in private. he left Taiwan with the help of friends. §Taiwan is a small place. No matter where the applicant runs, she will be discovered. §The applicant because of her sexual orientation will not receive protection from the government. The Taiwan authorities believe that homosexuals are unlawful and won’t provide her with any help. §If the applicant is forced to return to Taiwan, she will once again experience unfortunate things. The applicant will be discriminated against and persecuted in every aspect. §Laws are universal in Taiwan and relocation won’t change her circumstances.

Ratio Decidendi

Legal Principle Established

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 The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of origins and identity There is no evidence before the Tribunal to indicate that any of the documents provided to the Tribunal by the applicant is a bogus document as is defined in section 5(1) of the Act. Based on a copy of the applicant’s Passport, which was provided to the Department of Home Affairs (the ‘Department’) and to the Tribunal (on file) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of Taiwan and has had her claims assessed against that country in relation to section 36(2)(a) and section 36(2)(aa) of the Act and on the basis of this evidence (before the Tribunal), the Tribunal further accepts and finds the applicant’s identity is as is claimed for the purposes of this decision. Protection in another country The Tribunal finds on the evidence before that the applicant does not have a right to enter or to reside in a country other than the Republic of Taiwan. Therefore, the Tribunal concludes and finds that section 36(3) of the Act does not apply to the applicant. Department File accessed by the Tribunal The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s record to the Tribunal with his application for review. Background – the Applicant’s migration and visa history [Redacted]EVIDENCE BEFORE THE TRIBUNAL Background – the Applicant’s Personal details