1816916 (Refugee)

1816916 (Refugee) [2024] AATA 1546 (8 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816916
COUNTRY OF REFERENCE:                   (Republic of China) Taiwan
MEMBER:Christine Cody
DATE:8 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 8 March 2024 at 11:39am

CATCHWORDS
REFUGEE – Protection Visa – Taiwan – domestic violence victim – applicant gave inconsistent evidence about the controlling and possessive nature of her husband – claim is inconsistent with her statement – has not been a witness of truth – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
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 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 21 May 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 10 July 2017. Relevant law is set out in Annexure A.
Claims made to the Department
The applicant provided her protection visa application form signed 30 June 2017, a statement, and a copy of her passport issued [date] 2017. At the time of application she was represented by a registered migration agent.
According to the protection visa application form, the applicant was born in Fuqing City, Fujian Province, China, and she is [date] years of age. Her ethnicity is Chinese. She has no religion. She speaks, reads and writes in Chinese.
The applicant declared no educational or employment history.
Her parents are Chinese citizens. She has an older sister and she has 2 children (a daughter born in [year] and a son born in [year], all of whom reside in Fujian Province, China. She contacts her relatives sometimes.
From her birth until June 2010 the applicant resided at a village in [a] Town, Fuqing City.
She married [a] Taiwanese citizen born in [year], in Fuzhou City, [in] June 2010. From June 2010 to April 2017 she resided in Tainan City in Taiwan; her husband continues to reside there now.
The applicant applied for her (current) passport which was issued on [date] 2017. She travelled from Taiwan to China on [date] February 2017 until [date] March 2017 when she returned to Taiwan. She departed Taiwan on [date] April 2017 and arrived legally in Australia on [date] April 2017 as a visitor.
Concerning her claims, she stated:
Question 88: ‘I am seeking protection in Australia so that I do not have to return to:’
Republic of China.
Question 89: ‘Why did you leave that country(s)? Provide specific details.’
Please refer to my statement.
Question 90: ‘What do you think will happen to you if you return to that country(s)?’
Please refer to my statement.
Question 91: ‘Did you experience harm in that country(s)?’
Please refer to my statement.
Question 92: ‘Did you seek help within the country(s) after the harm?
Please refer to my statement.
Question 93: ‘Did you move, or try to move, to another part of that country to seek safety?’
No. Please refer to my statement.
Question 94: ‘Do you think you will be harmed or mistreated if you return to that country(s)?’
Yes. Please refer to my statement.
Question 95: ‘Do you think the authorities of that country(s) can and will protect you if you go back?’
No. Please refer to my statement.
Question 96: ‘Do you think you would be able to relocate within that country(s)?’
No. Please refer to my statement.
Her statement is as follows:
My name is [name]. I came to Australia on April [date], 2017 and I hope the Australian government could protect me both physically and spiritually. Here's why I came to Australia for help.
I got to know my husband who's from Taiwan in 2009. At the beginning, he was very nice to me and often came from Taiwan to see me and accompany me. So we got married in June 2010. But my husband did not like to stay on the mainland for a long time, so we decided to settle down in Taiwan! I thought that was the beginning of our happy life. However, it was the beginning of a nightmare!
After we moved to Taiwan, I found my husband's life there was very different from what he told me. My husband said he was a [Occupation 1] of a company at Tainan. But in fact, he was only a [Occupation 2] of a [company]. I did not care what his job was. I just thought he should not lie to me. Then I found more lies about him. So we had some arguments. At first, I still kept the idea of living with him peacefully, so I tried not to talk whenever he shouted to me, hoping my giving in could make our marriage life safe and smooth. But I was wrong. My concessions added fuels to the fire. He started to beat me. One day, he blamed me of making the dish too salty. I tried to explain; he buckled the dish on my head and then started to beat me. After the first time of beating me, he seemed to be addicted to the domestic violence. Whenever he was a bit unhappy, he would beat me. I asked help from the Taiwan police, but Taiwanese discriminated against brides from other cities. They not only refused to issue me a protection order, but also advised me not to piss my husband. In order not to make my parents worry about me, I never told them my real life situation. I did not want to divorce because I did not want my family and friends to be laughed at by others in my hometown. So I had been living a miserable life for many years. My parents-in-law discriminated against me as well. Every time I got hurt, they would not help me, on the contrary, they hurt me with evil words.
In February 2017, my mother was very ill. So I begged my husband to let me return to the mainland to visit my mother. He finally agreed to buy the tickets for me after my long time begging. Normally my husband controlled all the money, so I did not have any economic freedom. When I got a chance to return to China, I thought I could finally have a peaceful life of my own. But I was wrong again. When he found I would not like to return to Taiwan, my husband came to my parents' place angrily, with a bottle of sulfuric acid. He said if I refused to go back to Taiwan with him, he would hurt my loved ones. My parents were so scared he would hurt me that they persuaded me to go back with my husband. I went to the police for help, but they said my husband had not done anything to hurt my family, they could do nothing. So I had no choice but to go back to Taiwan.
What should I do? I decided to help myself when others could not help me. I let my sister transfer money to my friend, who helped me applied for a visa to Australia. Then I quietly went onboard the flight from Taiwan to Australia. My nightmare life finally ended.
I do hope the Australian government could protect me and allow me to live in this free and democratic country without any fear.
The delegate’s decision record
The delegate refused to grant the visa on the basis of country information from which it was considered that domestic violence victims are able to obtain state protection, noting also that there is a requirement by law to have shelters available for victims. The delegate was not satisfied that the Taiwanese authorities will not assist women who have been involved in domestic violence.
The Tribunal
The applicant provided an application for review form on 9 June 2018.
The Tribunal requested that the applicant provide any submissions or documents upon which she sought to rely on a number of occasions prior to the hearing, however she did not provide any.
By way of letter dated 18 January 2024 the applicant was invited to attend a hearing on 2 February 2024. She did not attend the hearing and did not contact the Tribunal. On 5 February 2024 the Tribunal dismissed the application for review. Only after it was dismissed did the applicant write to the Tribunal, seeking a reinstatement, saying that she had been unwell. For the reasons set out in the reinstatement decision dated 14 February 2024, the Tribunal reinstated the application and sent out a second hearing invitation, inviting her to attend a hearing on 1 March 2024.
She responded that she would attend the hearing but did not complete the response to hearing invitation.
The hearing
The applicant appeared before the Tribunal on 1 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Some of the evidence given at hearing is set out below:
·     The applicant provided her name and age and said that she was born in Fujian Province. She said that her application form and statement were true and correct, they were read back to her and there were no errors, and nothing was missing.
·     Her first husband was [name], and they married 35 years ago. Her daughter is about [age] years old and is married. Her son is also married. She has an older brother who does not work and is supported by his son. Her sister [works], and she is married. There are another 2 older sisters. She said that some of her relatives live close to each other, and others live far away.
·     The applicant said that she did not work in China. In Taiwan she started a business, selling clothes in the street of the city of Tainan for over 3 years from 2010–2012. She then had jobs in markets selling vegetables from 2012–2017.
·     She met her husband through friends when she was living in China and he was living in Taiwan. She had a Chinese friend who married someone in Taiwan and moved there. Her husband continues to work in a nearby temple and resides at the same address.
·     She said that she married in 2010, she went to Taiwan in June 2010 and the first time her husband hit her was on 8 November 2010. Thereafter, it was regular.
·     Her husband would get drunk and hit her and ask her for money every day. He was violent.
·     The Tribunal asked whether she had divorced her husband and she said that he doesn’t want a divorce. She had asked him for a divorce in January 2017 and he said don’t you ever think about this, if you do I will beat you to death.
·     When asked what she feared would happen if she returned to Taiwan, she said that she fears that her husband may hit her. Whenever he has alcohol he hits her. She will be beaten to death by him The Tribunal asked why she doesn’t then go back to China. She said if she goes back to China he will come to find her and people will laugh at her because she married such a horrible husband and so she fears going back to China.
·     Since she came to Australia in April 2017, she started work in May 2017 in a [workplace]. She continues this work to date. She travels to work by train.
Further relevant evidence is set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant produced her passport to the Department, who accepted that she was a citizen and national of (Republic of China) Taiwan and assessed her claims against (Republic of China) Taiwan. The Tribunal was also provided with her passport and accepts that she is a national of (Republic of China) Taiwan and that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purposes of her complementary protection claims, is (Republic of China) Taiwan.
Credibility
The mere fact that a person claims fear of persecution 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 claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal put to the applicant its concerns about the inconsistencies in her evidence, which undermined her credibility and claims about her circumstances in China and Taiwan.
Firstly, the Tribunal had concerns that the applicant’s claim in her statement that her husband had attended her parents’ home with sulphuric acid in 2017 and her parents forced her to reunite with her husband, so she did so, could not be true because she had told the Tribunal that her parents were dead by that time.
In this regard the applicant told the Tribunal that her parents were both deceased: her father passed away 17–18 years ago [thus in about 2006/2007] and her mother passed away 14 years ago [thus in about 2010]. When the Tribunal put to her that the events of 2017 concerning her parents could not be possible, she said in response that she forgot. The Tribunal did not find this persuasive, noting that she had given fairly specific evidence as to how long ago her parents had died; it is not persuaded that she made a mistake and forgot when her parents died.
As discussed below, the Tribunal has not accepted that the applicant has memory issues as claimed. The Tribunal considers that her claim that her parents died in about 2006/2007 and 2010 undermines the claim that the applicant’s husband came to find her in China in 2017 at which time her parents persuaded her to return with her abusive husband to Taiwan. The Tribunal considers that her evidence also undermines her credibility.
Secondly, the Tribunal had concerns about the applicant’s credibility relating to her background, as relevant to her claims.
Marriage and moving to Taiwan: The applicant gave evidence inconsistent with her documents concerning when she was married and when she moved to Taiwan after the marriage; further, the dates in her written materials were also inconsistent with her statement. In her written documents she stated that after they were married, they lived in China, but her husband thereafter didn’t want to stay on the mainland so they decided to go to Taiwan.
Her application form, however, stated that she was married [in] June 2010 and she moved to Taiwan that same month (thus, within the next 2 days). When the Tribunal asked the applicant whether they discussed where they would live before they got married, she said yes, they were going to live in China. When asked when it was decided they would move to Taiwan, she said 3 months after they got married he said that he wanted to move to Taiwan. She then said that she was married [in] May 2010.
When the Tribunal put to her that according to her application form, she was married [in] June 2010, she said that she forgot the date of her marriage. The Tribunal did not find this persuasive, given that she had given a precise date of marriage which she then agreed was incorrect. The Tribunal then put to her that it could not have taken 3 months of living on the mainland before the decision was made to move back, as within 2 days of marriage she went to live in Taiwan. In response she said that soon after they got married he asked her to move back with him, and she doesn’t recall the date. The Tribunal put to her that she had said that it was 3 months after they were married. She then said that she doesn’t recall clearly.
The Tribunal does not find her explanations to be persuasive. She had provided a fairly precise period of time after which they decided to move; the Tribunal does not accept that she was unsure. The Tribunal considers that her evidence undermines her claims as to the circumstances of her marriage and move to Taiwan.
Taiwanese citizenship, relinquishing Chinese citizenship, and trips back to China: The Tribunal was further concerned as to the applicant’s claimed background concerning when she became a Taiwanese citizen and her trips back to China. Concerning her citizenship, the Tribunal was concerned that the applicant initially claimed not to know when she became a Taiwanese citizen, and thereafter gave changing evidence.
The Tribunal noted that when she travelled to Taiwan after the marriage, she was a Chinese citizen (she had not claimed to have obtained Taiwanese citizenship while in China). It asked her how long it took to become a Taiwanese citizen. She initially said that when she got married and moved to Taiwan she became a Taiwanese citizen. The Tribunal said that this is not usually how citizenship is granted and it asked her to explain. She said she doesn’t read and her husband deals with these things. The Tribunal put to her that it would think that this would be a significant event. She still said she did not know when she became a Taiwanese citizen. The Tribunal said that this was difficult to accept.
The Tribunal then discovered that, contrary to her application form where she did not declare any trips back to China once she moved to Taiwan (other than the trip in February 2017), she had made numerous trips back to China from Taiwan. When the Tribunal asked her what passport she had used to travel back to China, she said that she had used her Taiwanese passport, pointing to the passport shown to the Tribunal. The Tribunal noted that this had been issued in February 2017 so she could not have been making trips between China and Taiwan using that passport. She then said that she had travelled back to China on a Taiwanese passport every time; and she said that when she left China for Taiwan (June 2010), she gave up her Chinese hukou (household registration) and she was no longer a Chinese citizen. The Tribunal asked her whether she then needed a visa to travel from Taiwan to China and she said yes, each time she needed a visa, which she would organise, she would usually stay for one month at a time when she went back to China.
While the Tribunal noted that the applicant was vague when asked about the date of her first trip back from Taiwan to China, her evidence (as discussed below) pointed to it being in 2013.
The Tribunal then put to the applicant country information which was inconsistent with her evidence at hearing, noting that:
The law allows non-PRC-born foreign spouses of Taiwan passport holders to apply for Taiwan residency after three years, while PRC-born spouses must wait six years. Unlike non‑PRC spouses, however, PRC-born spouses may work in Taiwan immediately on arrival.[1]
[1] The current report makes this statement: This is the same in the 2013 report: type="1">
The applicant then agreed with the country information. The Tribunal put to her that this indicates that she would not have been able to become a Taiwanese citizen until 2016. She then said that even before she moved to Taiwan, she was granted a Taiwanese passport. She then said no, and she changed her evidence to claim that she had travelled back to China from Taiwan using her Chinese passport. The Tribunal put to her that this was inconsistent with her earlier evidence. She said no, and that she meant to say that her current (Taiwan) passport (2017) is her first Taiwanese passport. The Tribunal put to her that she had earlier given different evidence. She responded she didn’t make it fully clear that this was her first Taiwanese passport. The Tribunal put to her that this indicates that she became a Taiwanese citizen in 2016, and she agreed. The Tribunal put to her that she earlier said she could not recall when she became a Taiwanese citizen. She responded she forgot. The Tribunal does not find this explanation persuasive, noting the significant changes in her evidence. The Tribunal asked if she had had a ceremony to become a Taiwanese citizen and she said she forgot.
The Tribunal does not accept any of the applicant’s explanations. She initially claimed to have given up her Chinese citizenship in 2010 and to have used a Taiwanese passport and to have required a visa to enter China every time she travelled to China (from at least 2013), and that she personally went to obtain such visas; she then changed her evidence and said that she had used her Chinese passport to travel back to China (between 2013 and 2017), which undermines her evidence that she had required the Chinese visas that she claimed to have obtained. The applicant was unable to offer reasonable explanations for her changing evidence. The Tribunal considers that the above undermines the applicant’s claims as to her background and her credibility.
Thirdly, the Tribunal was concerned that the applicant gave inconsistent evidence about the controlling and possessive nature of her husband.
In this regard, she told the Tribunal that in January 2017 she had asked him for a divorce and he had threatened her. Yet, the next month he allowed her to get a passport (February 2017) and to travel out of the country without him. The Tribunal put to her that this was inconsistent with the claimed nature of her husband. She responded that she begged him when he was not drunk. The Tribunal put to her that this was difficult to accept, especially as the reason why she was begging to return was because her mother was sick, but, as set out above, at that time, her mother had already been dead for years. She said she was sorry and she said that she is not sure when her mother passed away. The Tribunal does not find her evidence or explanations to be persuasive.
The Tribunal considers the applicant’s claim that, despite telling her husband that she wanted a divorce, which he absolutely refused, and he had a very controlling nature, he allowed her to obtain a passport and leave the country without him, to be difficult to accept. When taking into account the claimed reason for her travel to China in February 2017, the Tribunal considers that this undermines her credibility.
Further, the Tribunal considered that the applicant’s claims to have returned on numerous occasions to China also appeared inconsistent with her claims as to the nature of her husband: that she was subject to domestic violence in Taiwan and that her husband was controlling. As noted above, the applicant said that she made numerous trips back to China once she moved to Taiwan in 2010. She initially said that she could not recall any dates of the trips to China other than in February 2017. However, after asking a number of questions, it transpired that she returned on 6–7 occasions (approximately) including as follows:
·     2013: daughter’s marriage;
·     2013: son’s marriage;
·     2014: daughter gave birth to her now [age]-year-old child;
·     2015: son’s wife gave birth to a now [age]-year-old child;
·     Unknown: invited back for new year festival.
The Tribunal put to her that according to her statement, her husband controlled all the money and she had no economic freedom, and she is now claiming that she was able to go and organise visas and travel back to China for special occasions, seemingly whenever she wanted. In response she said that she had to get his permission and she had to please him. The Tribunal has taken into account that it is possible that a husband who is controlling, possessive and inflicting violence on his wife may nevertheless allow her to visit her family members in another location; however when taking into account the other concerns (as well as the failure of the applicant to declare these trips in her written material) the Tribunal does not accept her explanation. The Tribunal considers that her evidence indicates that she was free to travel back and forth between China and Taiwan for important family occasions and the Tribunal considers that this undermines the claimed nature of her husband.
Fourthly, the applicant gave inconsistent evidence about the assistance she sought from the police in Taiwan. In her statement she claimed that the Taiwanese authorities not only refused to issue her a protection order, but they also told her not to make her husband angry at her. However, she told the Tribunal that she went to the police and she just asked them to put him in handcuffs for a few hours and then release him. The Tribunal put to her that this was inconsistent with her statement. Her first explanation was that she was not educated; she then said that the police refused to issue her with a protection order. The Tribunal put to her that, according to her evidence to the Tribunal, she didn’t ask for a protection order. The applicant then changed her evidence and said that in Taiwan there is no such thing as a protection order. The Tribunal said that this new claim is inconsistent with her statement, where she specifically states that she had requested a protection order. She said that she meant that she wanted him in handcuffs, and they refused to protect her. The Tribunal does not find her explanation for her changing evidence to be persuasive.
Fifthly, the Tribunal had concerns about the applicant’s credibility generally, even if not directly related to her claims. For example:
·     The Tribunal was concerned because when the applicant was asked how she completed her application form and statement, she said that she told her friend [name] who wrote it for her. She did not pay her friend. The Tribunal put to her that this was inconsistent with her protection visa application form whereby she was represented by her registered migration agent Jie Yu, and that it is reasonable to expect that she would have paid for this service. In response the applicant said that she probably forgot. The Tribunal did not consider this to be a persuasive explanation. It notes that the applicant gave a precise name of a person who assisted her and read back to her the application form and statement; it is not satisfied that she forgot that she had used a migration agent.
·     The applicant said she came from a poor family in China. She also said that she did not work in China, and that she left China when she was in her [age]. The Tribunal put to her that it was difficult to accept that she had never worked the whole time she was in China. She then changed her evidence and said that she had worked on the farm with her family, farming, from the age of [age] years to [age] or more years. The Tribunal asked why her protection visa application form said that she had never engaged in any work, which was also her initial evidence to the Tribunal. She said that she had expressed herself poorly. The Tribunal does not find this persuasive.
The Tribunal considers that the above examples appear to be further instances of the applicant not being truthful.
Summary
Having regard to the above, the Tribunal is not satisfied that the applicant is a credible witness in relation to her claims for protection.
Other matters
The applicant made a claim at hearing about her memory. On a number of occasions when there were difficulties with her evidence, the applicant said that she had memory problems. The applicant asserted that she had had [an illness]; her evidence was that there were no current concerns in this regard but she has check-ups and takes medication. She then asserted that she had told her GP she had memory issues and that her GP told her that this was because of all the medication she had taken. The Tribunal asked if her GP had sent her anywhere to get tests for memory and she said no. The Tribunal put to her that this would indicate that it is not a significant problem. She then changed her evidence and said that the doctor did ask her to do some checks and she could not work out how to get there so she didn’t go. The Tribunal put to her that this is difficult to accept. She said it is true, she doesn’t read Chinese and she doesn’t speak English and she didn’t attend school.
The Tribunal is concerned by the applicant’s changing evidence in response to the Tribunal putting to her that her GP did not seem to consider that she had a memory issue requiring any follow-up. The Tribunal also considers it difficult to accept her changed evidence that she did not follow up her GP’s recommendation because she could not work out where to go. It notes that she has managed to travel to and survive in 2 foreign countries, managed to travel back and forth between Taiwan and China, and managed to run small businesses in Taiwan, and maintain a job in a [workplace] for years in Australia, to which she travels by train. The applicant is resourceful and the Tribunal is not prepared to accept her assertion that she was not able to organise follow-up recommended by her GP. The Tribunal does not accept that the applicant has memory problems which can explain the difficulties with her evidence.
The Tribunal is also not persuaded that her claim as to her level of education can explain the difficulties in her evidence. The applicant claimed that she had not been educated as an explanation for difficulties with her evidence (including why she didn’t go to get memory tests). The Tribunal notes her travel and survival in 2 foreign countries, her travel back and forth between Taiwan and China, and that she managed to run small businesses in Taiwan and maintain a job in a [workplace] for years in Australia. While these matters do not necessarily mean that she is educated, the Tribunal is not persuaded that any lack of education (if true) can explain the difficulties with her evidence.
The Tribunal is not persuaded that the applicant has memory problems nor that her level of education adversely affected her ability to give evidence.
The Tribunal has considered whether the applicant may have been stressed or nervous while giving her evidence however it is not satisfied that this can explain the difficulties with her evidence.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that she has not been a witness of truth when making claims in these proceedings. The Tribunal considers that the applicant is prepared to make up claims and change her evidence in order to be granted a protection visa.
Findings on the applicant’s claims
The Tribunal accepts that the applicant was born in China and is now a Taiwanese citizen (as set out in her passport). The Tribunal does not otherwise accept that she is a witness of truth.
On the basis of its adverse credibility finding, the Tribunal does not accept that the applicant was subject to domestic violence, tried to escape, was prevented from doing so, and then secretly had to escape to Australia. The Tribunal does not accept that she approached police in China or Taiwan for assistance as it does not accept that she had a need for assistance. The Tribunal does not accept that the applicant has been honest about her background (including family and education and work and marriage and when she obtained her Taiwanese citizenship and memory problems). The Tribunal does not accept any claims that flow from those claims.
Refugee claims
The Tribunal does not accept that the applicant has any genuine fears of harm for any reason including race, religion, nationality, political opinion or membership of a particular social group if she returns to Taiwan.
The Tribunal also does not accept that she faces a real chance of serious harm for any reason in Taiwan.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, in the context of its findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, and, apart from those claims accepted above, the Tribunal rejects all the various claims made and finds that she does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by her or on her behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Attachment A, which provides a summary of the relevant terms). The Tribunal has accepted that the applicant will return to Taiwan. It is not satisfied that she left Taiwan due to any fear of harm. The Tribunal has found that the applicant is not a witness of truth concerning her claims that she faces a real risk of significant harm.
The Tribunal is not satisfied that she faces a real risk of experiencing significant harm for any reason.
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case (Republic of China) Taiwan, there is a real risk that she will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
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).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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.
Christine Cody
Member

ANNEXURE A - 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) 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, 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.
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.
…

[2024] AATA 1546

8 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction