1809856 (Refugee)

[2024] AATA 1103

1809856 (Refugee) [2024] AATA 1103 (22 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809856

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Angela Cranston

DATE:22 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 22 February 2024 at 13:01pm

CATCHWORDS

REFUGEE – protection visa – Taiwan – particular social group – women – victims of family violence –physical assault – hospital treatment – applicant locked in the home – state protection – return visit to Taiwan – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicant who claims to be a citizen of Taiwan, applied for the visa on 5 July 2016.  In her application, the applicant said:

I left Taiwan because of my boyfriend. He hurt me when I was in Taiwan. His name is [Mr A]. I met him when I worked in [a named town] as [an occupation 1]. I knew him through work. He helped me a lot. He became my boyfriend not long after we met. Then he very controlling. He wanted to know everything l do during the day. I have to ask permission for everything. Then he became violent. He hit me and slapped me on my face regularly. I had enough of his violence and bad temper. I came to work in Australia. He was mad because he cant find me. I had a few years living without his violence in Australia. I felt relieved. In 2016 when I went back to Taiwan to visit family, he found me. He locked me up I his apartment. He hurt me. I finally escaped after 4 months. I was very scared of getting locked up by him again. I reported him to Taiwan police station. Police asked me few questions then left. I hided in my friend’s place and waited for police to arrest him. But in fact, police didn’t arrest him because I didn’t have enough evidence. I felt Iike I will never have enough evidence to get him arrested. I came to Australia again in November 2016. I went to Taiwan again in August 2017. In September 2017, He saw me in the street. I immediately ran away. I was so sacred. I came back to Australia a few days later. I never wanted to go back to Taiwan again.

3.    The delegate refused to grant the visa and the applicant applied for review.

4.    The applicant appeared before the Tribunal on 7 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5.    The applicant stated she came to Australia in 2015 and applied for a protection visa in 2018. She stated her visa application had been completed by an agent, who had asked her questions and repeated back what had been written in English into Mandarin, it was correct and she did not wish to change or add anything.

6.    The applicant stated she came to Australia because of domestic violence from her boyfriend [Mr A] and she wanted to run away from Taiwan. She stated she was in a relationship with [Mr A] from 2012 to 2015 and they met at school when she was [age range]. She stated they were classmates, but they only had interactions after she graduated from university when she was [age range], that is they were classmates in school, they went to different universities and met at a gathering and then became boyfriend/girlfriend.

7.    The applicant stated they lived together for a few months. The relationship ended in 2015 when she told him she wanted to break away. He did not agree, and she came to Australia.

8.    The applicant stated when she returned to Taiwan here had been no incidents or problems. 

9.    The applicant stated she could not return to Taiwan because during her two-year relationship, her boyfriend beat her many times and she had been admitted to hospital and sought treatment for depression.

1. The applicant stated she returned 2 or 3 times to Taiwan. The Tribunal put to her that if she had applied for a protection visa because she could not return to Taiwan, then why had she returned. She stated the first two times she was sick and the last time family had passed away. When asked if she was afraid of returning, she stated she did what she had to do and rushed back. She had no problems the times she returned. 

2. The Tribunal put to her that many of the details she had just given were inconsistent with her visa application, that is she stated they met at work. She stated he came to her workplace and that was what she told her agent and she did not know what her agent had written. The Tribunal put to her the protection form said, ‘I knew him through work’. She said she did not know what the agent put and stated the agent’s licence had been cancelled.

3. The Tribunal also put to her she had stated at hearing she was in a relationship with [Mr A] when she was [age] but she also said she was in a relationship with [Mr A] from 2012 to 2015 which, because she was born in [year] meant she would have been [higher age] and not [age range]. The applicant stated she got to know [Mr A] from school, and around [age] she met him again at a classmates gathering.

4. The Tribunal put to her that her statement did not mention she was in hospital before she came to Australia in 2015. She said it was not a detailed statement. The Tribunal put to her that her application only indicated she lived at one address in Taiwan from when she was born and up until when she came to Australia. She said she had different rental places from her family including with her boyfriend. The Tribunal put to her that her statement said in 2016 when she returned to Taiwan, her boyfriend locked her up for four months in his apartment. She stated there was no major incident when she returned. She stated she did not know what her solicitor had put but when they read it back, she thought it was the same as what she said.

5. The Tribunal put to her it may find it difficult to accept she was in a relationship with [Mr A] who physically harmed her. The Tribunal also put to her information before it suggested the police took domestic violence seriously, that prosecutors were allowed to investigate complaints of domestic violence when the victim had not filed a formal complaint and that convicted domestic violences offenders were typically sentenced to less than six months in prison.  

6. The applicant said she thought about reporting her matter to the police but did not because she was too afraid. The Tribunal put to her that her statement said she reported [Mr A] to police but there was not enough evidence to arrest him.  She stated she did not know how the solicitor reported her story and that he probably only told her the important parts.    

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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

1. In her protection visa application which the applicant initially stated at hearing had been read back to her in Mandarin and was correct and there was nothing to change or add, the applicant stated she met [Mr A], her boyfriend when she worked as [an occupation 1], that he became violent and she had enough and came to Australia, that when she returned to Taiwan in 2016 he found her and locked her up in his apartment for 4 months, that she escaped and reported him to Taiwanese police who said she did not have enough evidence. She also stated she again saw [Mr A] in the street when she returned to Taiwan in August 2017 and was so sacred, she returned to Australia a few days later.

2. However, at hearing, the applicant stated she met [Mr A] at school and was in a relationship with him from 2012 to 2015 (which would have meant her relationship commenced when she was [higher age]) but then stated they were in a relationship when she was [age range]. She also stated that when she returned to Taiwan, there were no problems or incidents, that [Mr A] had beaten her during her two year relationship and she had been admitted to hospital and never went to the police. 

3. The Tribunal finds that the applicant’s evidence has continued to change in relation to how she knew [Mr A], when they were in an actual relationship, when she was allegedly harmed, and if she went to the police. The Tribunal does not find it insignificant that the applicant initially stated at hearing that she was hospitalized before she came to Australia in 2015 but failed to mention that in her statement and said in her statement she was detained for four months by her boyfriend after she returned to Taiwan in 2016 and that she had been to the police but said at hearing there were no incidents when she returned to Taiwan and that she had never been to the police.

4. When the inconsistencies were put to the applicant, she stated she did not know what the agent had written however it was put to her she had initially stated at hearing the agent had translated the English back to her in Mandarin. She then suggested the agent’s license had been cancelled. In relation to the lack of detail about her alleged hospitalization, the applicant stated her written statement was not that detailed.

5. The changing nature of the applicant’s evidence in relation to substantive details about the alleged relationship is such that the Tribunal does not believe what the applicant is saying is true.  In reaching this conclusion, the Tribunal has considered the applicant’s submission at hearing, however given her initial statement that her protection visa claims were read back to her and were correct, the Tribunal does not accept that even if the agent’s license was cancelled, that the agent would somehow translate alternative details to those in the applicant’s written claims. In reaching this conclusion, the Tribunal has also considered that the applicant’s own oral evidence was internally inconsistent, that is she initially stated she was in a relationship with [Mr A] from 2012 to 2015 which would have meant the relationship began when she was [higher age] but then claimed their relationship began when she was [age range].

6. The Tribunal does not accept the applicant was in an abusive relationship with a man named [Mr A], nor that she was hit, slapped, nor beaten, nor that she was hospitalized, nor fled Taiwan, nor that she experienced harm on her return trips back to Taiwan.

7. For the reasons above, the Tribunal does not accept that the applicant has suffered any previous harm in Taiwan, nor that there is a real chance that she will suffer serious harm from [Mr A] or anyone else in the reasonably foreseeable future. The Tribunal does not accept that she has a well-founded fear of being persecuted for one or more of the Refugee reasons if she returns to Taiwan now or in the reasonably foreseeable future.

8. 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).

9. 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). On the basis of the applicant’s lack of credibility, the Tribunal has rejected all of the applicant's claims. The Tribunal is therefore not satisfied that there is a real risk that the applicant will suffer any harm, let alone significant harm as defined in ss.36(2A) and 5(1) of the Act.

10. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

11. There is no suggestion that 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

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

Angela Cranston
Member

1. 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.

1. 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.

2. 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.

3. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…