1814759 (Refugee)

1814759 (Refugee) [2020] AATA 5892 (16 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1814759
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Paul Windsor
DATE:16 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 December 2020 at 10:57am
CATCHWORDS

REFUGEE – Protection visa – Taiwan – political opinion – a member of the ‘Sunflower student movement’– the applicant did not participate in the Sunflower student movement – stay in Australia to earn more money – delay in seeking protection–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 4 May 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of the Republic of China (Taiwan), applied for the visa on 25 January 2018.
In his protection visa application it was stated that the applicant was born on [date of birth] in [Country 1], is of ‘Mandarin Chinese’ ethnicity, a Buddhist and has never married. It was indicated he departed Taiwan legally [in] June 2017 and arrived in Australia on the same day.[1] As discussed further below, the information regarding his marital status and date of arrival in Australia was incorrect.
[1] See the Departmental file.
The protection visa application indicated that the applicant sought protection in Australia because he feared being arrested due to his political views. He indicated he was a member of the ‘Sunflower student movement’ in Taiwan in 2014, was caught by a ‘local authority officer’ and sent to jail in the same year. It was claimed the applicant thinks he would be sent to jail and punished if he returned to Taiwan.[2]
[2] See the Departmental file.
After considering relevant country information, the delegate refused to grant the visa as they were not satisfied that the applicant’s claims provide sufficient basis to be satisfied he is at risk of being persecuted by the Taiwanese authorities due to his political opinions, or that there is a real risk he will suffer significant harm if removed to Taiwan.
The applicant applied to the Tribunal for review of this decision on 21 May 2018. He provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
The applicant appeared before the Tribunal by telephone on 22 October 2020 and 15 December 2020. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented by his registered migration agent. The representative attended the first part of the hearing on 22 October 2020.
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 (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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection as set out in his protection visa application were as follows:[4]
[4] See the Departmental file.
Select the country or countries from which this applicant is seeking protection and cannot return to. Country: TAIWAN
Provide reasons why this applicant left that country:?
I participated an assembly " Sunflower student movement" in year 2014 in my country Taiwan. I was caught by local authority officer and sent to the jail in the same year.
Did this applicant experience harm in that country? Yes
I participated an assembly " Sunflower student movement" in year 2014 in my country Taiwan. I was caught by local authority officer and sent to the jail in the same year.
Did this applicant seek help within the country after the harm? Yes
The local authority is the punish me and threat me
Did this applicant move, or try to move, to another part of that country to seek safety? Yes
I have tried to relocate. However, Taiwan is a small island. They can track me down everywhere in Taiwan.
Explain what the applicant thinks will happen to them if they return to that country?
Send me to the jail and punish me.
Does this applicant think they will be harmed or mistreated is they return to that country? Yes
Send me to the jail and punish me.
Does this applicant think the authorities of that country can and will protect this applicant if they go back? No
The authority is the one who wants to punish me.
Does this applicant think they would be able to relocate within that country to an area where they would not be harmed? No
The local authority didn't give me a chance to relocate. I will be caught once I go back to my country.
Findings and reasons
Identity
On the basis of the copy of his Republic of China (Taiwanese) passport submitted to the Department,[5] and for the reasons discussed further below, the Tribunal finds that the applicant is a national of the Republic of China (Taiwan) and that his identity is as claimed. The Tribunal finds that Taiwan is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[5] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Taiwan, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Assessment of claims
Background
Prior to the hearing (on 15 October 2020), the applicant’s current representative submitted a supporting statement dated 29 September 2020 from a friend of the applicant in Australia. The statement indicated that the applicant had a family in Taiwan, his wife ‘cheated on him’, he lost everything and his name has been removed from the ‘household booklet’. The statement asserts that the applicant officially divorced his wife in [07]/2020 and does not have any family in Taiwan.[6]
[6] See the Tribunal file.
At the start of the hearing the Tribunal asked the applicant if everything in his protection visa application is true and correct as far as he knows and believes. He indicated it was but added ‘including the divorce certificate and household registration’. When asked to explain the applicant indicated that, contrary to the advice in his application, he had assistance from his ‘agent’ in preparing the application. He indicated that he paid $[amount] for this person’s help because he needed to apply for protection because he could not stay in Australia unlawfully. He commented that he did not know this person ‘a lot’ and has not contacted them so cannot be satisfied that what is in the application is true and correct. The applicant said he contacted his current agent when he needed to get permission to work. He said he then leant that his wife has divorced him and his household registration has been deleted.
The applicant indicated that he has no family in Australia. He said his ex-wife, daughter and some siblings [live] in Taiwan. He indicated that his father has passed away and his mother, a younger brother and a younger sister live in [Country 1]. He said his mother never resided in Taiwan and only visited once.
The applicant said he grew up in [Country 1] but came to Taiwan with his father when he [age] years old. He said his father went to Taiwan to work and got citizenship after [number] years.
The applicant indicated he married in [Country 1] when he was [age] years old and was divorced in July 2020. He said he has a son and a daughter. He said his daughter lives with her mother in [Taiwan] while his son is studying [in] [Country 1].
The applicant indicated that he completed military service in Taiwan and then worked as [an occupation] in Taiwan. He said he has been working as [another occupation] in Australia.
Applicant came to Australia [in] December 2013, not [in] June 2017
The Tribunal asked the applicant when he came to Australia. He said it was [December] 2013. He indicated that he has not returned to Taiwan since then. This is consistent with information in the delegate’s decision record (a copy of which the applicant provided to the Tribunal) and in the Department’s ‘Movement Details’ record for the applicant.
The Tribunal queried the applicant about the errors in his protection visa application and asked why he and his current registered migration agent had not submitted a statement to the Tribunal correcting the errors in his application. The applicant commented that it was all done by the previous agent and he did not know what the person had written.
Claim to be a member of the Sunflower student movement
The Tribunal read to the applicant what had been written in his application about having participated in the Sunflower student movement in Taiwan in 2014, commenting that he has indicated that he was not in Taiwan in 2014 but was in Australia. The applicant indicated that the claims in his application were all done by his previous agent and confirmed that he came to Australia [in] December [2013]. The applicant said he applied for an extension in Australia until he applied for a protection visa.
The Tribunal finds that the applicant’s oral evidence at the hearing makes clear that the written claims in his protection visa application to have participated in the Sunflower student political protest movement in Taiwan in 2014 were concocted by his previous unregistered (and undisclosed) agent, without the applicant’s knowledge. It is clear the applicant was not in Taiwan in 2014. Accordingly, the Tribunal finds that the applicant did not participate in the Sunflower student movement, was not caught by the authorities and was not sent to jail in 2014. The Tribunal finds therefore that the applicant does not face a real chance of suffering persecution involving serious harm from the Taiwanese authorities, including being sent to jail and punished, because of any actual or imputed political activities or beliefs should he return to Taiwan, now or in the reasonably foreseeable future.
Claim to be unable to return to Taiwan because he has lost his household registration and citizenship rights
Noting the delegate’s decision record indicated that he was granted a further [visa] on 17 March 2014 but did not apply for protection until 25 January 2018 (nearly four years later), the Tribunal asked the applicant if he was unlawful for a time. He said he was. When queried that this appears to have been for around three years he replied, ‘yes’, commenting that he used up all his money.
The Tribunal asked the applicant why he did not returned to Taiwan after he came to Australia on a [temporary] visa. He said he had used up his money and wanted to stay in Australia to earn more money. The Tribunal asked the Applicant what he thought would happen to him if he returned to Taiwan now. The applicant replied that he has been divorced from his wife and his household registration has been deleted, commenting that it is like he has no citizenship.
The Tribunal asked the applicant why he couldn’t get a new household registration if he returned to Taiwan. He said he doesn’t think he can because he has been deleted from his wife’s household registration, commenting that he would have nowhere to live. The applicant also indicated that his Republic of China (Taiwanese) passport has expired (it was valid until [2020]). The Tribunal remarked that when he first came to Australia he had to find somewhere to live and asked why he could not do the same in Taiwan and then renew his household registration. The applicant replied that, according to the law in Taiwan, if a national does not go back for two years their household registration is removed. He added that dual citizenship is not allowed. The Tribunal remarked that he is not citizen of Australia (and noting he had indicated earlier in the hearing that he is not a citizen of [Country 1]) commented that he is not dual citizen. The applicant said if he went back he would not be allowed to live in his original district. The Tribunal asked why that would be the case. The applicant could not explain why that would be so.
The Tribunal asked that the applicant and his representative provide a submission to the Tribunal by close of business on 6 November 2020 regarding the issues that had been raised at the hearing in relation to household registration and Taiwanese nationality. The Tribunal indicated that it would also undertake research into the matters raised and may either write to the applicant or call a further hearing to discuss these matters further.
On 4 November 2020 the representative forwarded to the Tribunal a brief statement by the applicant dated 25 October 2020. In the statement the applicant commented as follows:
·He has been in Australia for more than 6 years and 11 months since he arrived in Australia [in] 10/2013. He has never left Australia.
·He has to apply for all the documents and certificates in Taiwan, he can't apply for them in Australia.
·He is alone in Australia and homeless in Taiwan. He was divorced.
·He has to register a household registration within two years of leaving Taiwan. However, he has been in Australia for more than 6 years and 11 months. It is a long time. This means he has no household registration.
·May God grant him permission to stay and serve Australia through the Officer. Due to the COVID-19 outbreak, we are urged to avoid physical contact to ensure the integrity of all of us, to avoid inconvenience. Hopefully things will return to normal soon.

The representative did not provide a submission addressing the basis for the applicant’s claims at the hearing that he would not be able to renew his passport in Australia, would not be able to renew his household registration, and that it is like he has no citizenship.
A resumed hearing was held on 15 December 2020. The applicant’s representative did not participate. The Tribunal paraphrased the contents of the applicant’s statement of 25 October 2020 and asked him if there was anything he wished to add. He indicated there was not.
The Tribunal indicated that it had researched Taiwanese nationality, passport and household registration law in relation to his claims made at the first part of the hearing, as well as considered information regarding the Taiwanese response to the COVID-19 pandemic, and wanted to give him the opportunity to comment on the relevant information.
In this regard the Tribunal discussed with the applicant the following country information:
Nationality
The Republic of China’s (RoC) Nationality Act (2000) (last amended in 2016) contains provisions for the acquisition, loss, restoration, and revocation of nationality.[7]
Article 11 of the RoC nationality law outlines provisions which equate to the loss of nationality. This provides for loss of RoC nationality, subject to approval by the Ministry of the Interior, if a RoC national:
·seeks to acquire the nationality of their foreign (adoptive) father or (adoptive) mother and relocate with him or her to a location outside the territory of the RoC.
·marries a foreign national; or
·voluntarily acquires the nationality of another country.
[7] 'Nationality Act', Ministry of Interior (Republic of China), amended 21 December 2016, 20200603110049
There are also limited exceptions that prohibit the loss of nationality outlined in Article 13;[8] and there appear to be safeguards against statelessness as a result of loss of RoC citizenship in Article 14, which states that a person who loses RoC nationality according to Article 11 may have their loss of nationality withdrawn with the permission of the Ministry of Interior during the time they have not acquired the nationality of another country.[9]
[8] 'Nationality Act', Ministry of Interior (Republic of China), amended 21 December 2016, Article 13, 20200603110049
[9] 'Nationality Act', Ministry of Interior (Republic of China), amended 21 December 2016, Article 14, 20200603110049
Citizenship
It is clear that RoC nationality does not equate to full citizenship rights unless a Taiwanese national has household registration (domiciles in Taiwan). After two years abroad, a Taiwanese national would need to update their household registration with the status of domicile in Taiwan (move-in).[10]
[10] ‘After having left Taiwan for two years and the household registration office has completed the compulsory move-out registration, how do I recover household registration?’, Bureau of Civil Affairs (Tainan City Government), 22 June 2015, 20201102170023
Household Registration
Provisions within the RoC Household Registration Act do not appear to indicate that a household registration is cancelled because of separation or divorce or domicile abroad. Rather, provisions in the household registration law mandate that changes in personal status including marital status and place of domicile are recorded.
A RoC national abroad who returns to domicile in Taiwan is required to update household registration upon return with the new address and household of domicile. Household registration can be updated at a mission abroad if a Taiwanese national’s marital status changes whilst abroad. In Taiwan, individuals can join or separate from households or register their own household.
Articles 16 and 17 specify that persons ‘moving-out’ or ‘–in’ from a household for longer than a specified period of time are required to update their household registration.[11]
Information obtained from a Bureau of Civil Affairs city government website says that citizens who depart Taiwan using an RoC passport for two or more years may have a ‘move-out’ (overseas) event recorded in their household registration by the household registration office. Upon returning to domicile in Taiwan, the holder of an RoC passport is required to update the household registration office with the household they wish to register with, effectively making a ‘move-in’ record.[12]
Article 19 of the household registration law makes it possible for a household registered at the same location to separate into multiple households or conversely unite with one another.[13]
Article 9 specifies that a person’s marital status shall be updated when divorce occurs.[14]
Article 26 states that household registration is filed with the household registration office where the place of domicile is registered. However, if an individual or couple marry or divorce abroad, personal status changes in household registration shall be made through a mission abroad.
If both or either of the parties concerned has or once had a household registration within the country, when they are married or divorced overseas, they shall submit related documents to RoC embassies, consulates general, consulates, representative offices, or offices (hereinafter referred to as “Diplomatic Missions”), or to organizations or civilian groups in Hong Kong and Macau designated by the Executive Yuan, to have them authenticated. After authentication, the documents will be forwarded to the household registration office where the applicant’s place of domicile is, or was originally, registered for marriage or divorce registration.
Renewal of RoC (Taiwan) Passport overseas
Article 15 of the RoC Passport Act states that an ‘application for passport shall be made in person or by an authorized agent of the applicant’.[15] Article 5 of the Regulations for Application and Issuance of Passports states that applications for passports can be made at ‘overseas embassies and offices’.[16]
Taiwan’s Bureau of Consular Affairs website provides information about renewal of a RoC passport abroad.[17] The same passport renewal application form is used for both RoC nationals with or without household registration.[18]
[11] ‘Household Registration Act’, Ministry of Interior (Republic of China), amended 21 January 2015, Article 16, 17, 20201105161010
[12] ‘After having left Taiwan for two years and the household registration office has completed the compulsory move-out registration, how do I recover household registration?’, Bureau of Civil Affairs (Tainan City Government), 22 June 2015, 20201102170023; ‘Immigration Reference Guide for Civil Carriers’, National Immigration Agency, Ministry of Interior, 16 May 2019, 20201109102539
[13] ‘Household Registration Act’, Ministry of Interior (Republic of China), amended 21 January 2015, Article 19, 20201105161010
[14] ‘Household Registration Act’, Ministry of Interior (Republic of China), amended 21 January 2015, Article 9, 20201105161010
[15] ‘Passport Act’, Bureau of Consular Affairs (Republic of China), 10 August 2017, Article 15, 202011051552
[16] ‘Regulations for Application and Issuance of Passports’, Bureau of Consular Affairs (Republic of China), effective 16 March 2020, Article 5, 20201105155940
[17] ‘Renew a Passport’, Bureau of Consular Affairs (Ministry of Foreign Affairs, Republic of Taiwan), 12 November 2017, 20201103122424
[18] ‘Ordinary Passport Application Form - For Nationals residing overseas or Nationals without an I.D. Number (English Sample)’, Bureau of Consular Affairs (Ministry of Foreign Affairs – Republic of Taiwan), 12 November 2019, 20201109105426
Management of COVID-19 in Taiwan
A recent BBC News report indicates that Taiwan’s early response to Covid-19 had kept the virus well in check there, resulting in Taiwan, with a population of 23 million people, being one of the most successful places in the world in dealing with the virus. The report indicated that, so far, there had been only 724 confirmed cases and seven deaths in Taiwan. The country has never had to go into lockdown, with the impressive success being largely attributed to early and strict border controls, a ban on foreign visitors, mandatory quarantine for all Taiwanese returning home, and the proactive wearing of face masks.[19]
[19] ‘Covid-19: Virus ‘success’ Taiwan to keep restrictions despite vaccine’, BBC News, 11 December 2020, >
The Tribunal commented that it was unable to see that the applicant would lose his citizenship within RoC/Taiwanese nationality law on account of the reasons he had provided, no information was found indicating he would be unable to renew his expired RoC passport in Australia, and that while his current household registration status may show him as having a ‘move-out’ (overseas) event recorded, upon returning to live in Taiwan, he would be able to update the household registration office with the household he wished to register with, effectively making a ‘move-in’ record.
When asked if he wished to comment on the information, the applicant said he had heard clearly what the Tribunal had said. When again asked if he had any comments on the information, the applicant said he doesn’t have a family or a home in Taiwan. The Tribunal asked the applicant if he could stay with one of his three brothers or two sisters in Taiwan, at least for a short period until he re-established himself there. The applicant replied that it is not possible for him to stay with his relatives, without expanding on the reason why, and commented that he does not have any contact with his daughter. The Tribunal suggested the applicant could stay in short term rental accommodation at least on a temporary basis, and inform the authorities where he was staying, until he found something longer term. The applicant commented that this would be very difficult. The Tribunal remarked that it would seem to be similar to when he first came to Australia, where he had to find temporary accommodation before he found somewhere to stay longer term. The applicant replied that when he first came to Australia he was able to book accommodation in a dormitory where he met two [people] who helped him.
Considering the relevant country information, the Tribunal finds that the applicant has not lost his RoC/Taiwanese nationality. The Tribunal accepts that he and his wife have divorced and that he has been removed from the household registration of his wife and daughter, as would be normal procedure when couples divorce and cease to live together. The Tribunal accepts that it may not be convenient or possible for the applicant to stay with relatives or he may not wish to stay with relatives (one of his five siblings) in Taiwan and may have to source temporary rental accommodation on return to Taiwan and until he re-establishes himself there. The does not, however, consider this an overly onerous outcome or one that would amount to serious or significant harm. The Tribunal also finds that, as someone who has lived abroad for two years or more, the applicant’s current household registration status in Taiwan would have a ‘move-out’ (overseas) event recorded but finds that, on his return to live in Taiwan, the applicant would be required to update the household registration office with the household he wishes to register with, effectively making a ‘move-in’ record. The Tribunal finds that once the applicant has registered a ‘move-in’ household, he would again be entitled to full citizenship rights in Taiwan. The Tribunal finds that there is nothing in the country information to indicate or suggest that the applicant could not renew his recently expired RoC/Taiwanese passport through a Taipei Economic and Cultural Office in Australia. The Tribunal also finds that there is nothing in the country information to indicate or suggest that the applicant could not live in the same district as he lived before he came to Australia or the same district as the one where his ex-wife and daughter currently reside, if he wished.
In relation to COVID-19, the Tribunal finds that while it is likely that the applicant would need to undertake a period of quarantine at the moment should he return to Taiwan, Taiwan’s management of the pandemic has been best practice and there is nothing to indicate or suggest that the applicant faces a real chance of suffering serious harm or a real risk of suffering significant harm as a result of the management of the pandemic in Taiwan.
Refugee criterion
Considering the applicant’s evidence and the relevant country information, the Tribunal finds there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm at the hands of Taiwanese government authorities, or anyone else, due to an actual or imputed political opinion, or for any of the four other reasons mentioned in s.5J(1)(a) of the Act should he return to Taiwan now or in the reasonably foreseeable future.
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).
Complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Taiwan, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[20]
[20] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Taiwan, there is a real risk that he would suffer significant harm as set out in s.36(2A), from Taiwanese government authorities, or anyone else.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
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.
…

[2020] AATA 5892

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