1820382 (Refugee)

1820382 (Refugee) [2024] AATA 1698 (11 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1820382

COUNTRY OF REFERENCE: Taiwan
MEMBER:Sophia Ziebell-Barnes
DATE:11 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 April 2024 at 6:24pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – victims of criminal gang – attacks by money lenders – fear of detention – return visit to Taiwan – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Country of nationality
The applicant, who claims to be a citizen of Taiwan, arrived in Australia [in] July 2015 using an apparently genuine Taiwanese passport, a copy of which is contained in the Departmental file. He has at all times stated that he is a citizen of Taiwan, and his application was assessed by the Department on that basis.
The Tribunal accepts on the evidence before it that the applicant is a Taiwanese citizen and his claims have been assessed against Taiwan as the country of nationality and the receiving country.
Protection visa application
The applicant applied for the visa on 2 June 2017. In summary, the applicant claimed that:
a.    He was persecuted by the underground bank and gangdom in Taiwan because he could not repay a debt.
b.    He borrowed money from an underground bank to pay for surgery for his mother.
c.     One day when he was at work, the applicant received a phone call from a neighbour who advised him that the underground bank had sent people to collect money. They ‘smashed all goods of [his] home’ and issued threats.
d.    The applicant later found out that the ‘gangdom was the protective umbrella of [the] underground bank. They protected each other’.
e.    The applicant wrote a public letter to get society’s attention and help.
f.   The gang sent people to catch him however he was not home.
g.    He was scared so he fled to Australia.
h.    He was worried for his parents’ safety so he returned to Taiwan but the police still wanted to catch him, so he returned to Australia.
i.   The applicant fears that if he returns to Taiwan, he will be caught by the police, the underground bank and the gang, which colludes with the police.
j.   If he is imprisoned, he will be mentally and physically persecuted and possibly killed.
k.     • The Taiwanese government is corrupt and the underground bank and gangs collude with the police.
The delegate did not interview the applicant, but ultimately refused the application for a protection visa on 25 June 2018, not being satisfied that the applicant was a refugee as defined in s 5H(1) of the Act and therefore that the applicant was not a person in respect of whom Australia had protection obligations.
The delegate also considered the applicant’s claims under the complementary protection criteria but was not satisfied that as a necessary and foreseeable consequence of being returned to Taiwan there was a real risk that the applicant would suffer significant harm and accordingly found that the applicant was not a person in respect of whom Australia had complementary protection obligations under s 36(2)(aa) of the Act.
Application for review and material received pre-hearing
On 13 July 2018, the applicant applied to the Tribunal for review of the delegate’s decision.
The applicant lodged a ‘response to hearing invitation’ form with the Tribunal on 28 March 2024.
The Tribunal hearing
The applicant appeared before the Tribunal on 8 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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.
Consideration of claims and evidence
The issues in this review are whether there is a real chance that, if he returns to Taiwan, the applicant will be persecuted for one or more of the five reasons set out in s.5J(1)(a) for the purpose of s.36(2) of the Act and, if not, whether there are 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 will suffer significant harm for the purpose of s.36(2)(aa) of the Act.
For the reasons that follow, the Tribunal has determined that the decision under review should be affirmed.
The applicant’s personal background
The applicant is [an age]-year-old single male. In his protection visa application (application), the applicant claimed to be born in Jilong, Taiwan. However, at hearing the applicant gave evidence that he was born in Keelung, Taiwan. The Tribunal accepts the applicant’s oral evidence that he was born in Keelung, Taiwan.
At hearing the applicant gave evidence that he [has specified family members]. [Of these, one sibling] lives in Taiwan and [another] recently started living with the applicant in Australia. The applicant’s parents both still live in Taiwan. The applicant completed secondary school at a vocational college in approximately [year range], before training as [an occupation 1].
The applicant is currently working in [industry 1] in Sydney, New South Wales.
The Tribunal accepts the above matters to be true.
Protection claims
Essentially, the applicant’s claim was based on harm experienced and feared in relation to an underground bank and related gangsters. However, at hearing the applicant gave evidence that a migration lawyer assisted him to write his claim. The applicant stated that he did not hold any fears at all in returning to Taiwan and resiled completely from the matters stated in the application. The applicant gave evidence that he enjoys living in Australia and prefers the environment here to that in Taiwan which has a much faster pace, and he prefers the pace and lifestyle here.
The Tribunal asked the applicant if he had any fears should he return to Taiwan. The applicant stated that he did not.
The Tribunal asked the applicant if he had any concerns about being harmed or threatened should he return to Taiwan. The applicant stated that he did not.
The Tribunal then queried ‘From what you have said, is it the case that you enjoy living in Australia and you would like to keep living in Australia, but you don’t fear harm if you return to Taiwan?’ The applicant said ‘correct’.
The Tribunal then took a short break to provide some time and space for the applicant to refresh and think about his claim should he wish to do so.
Upon return from the break, the Tribunal read an excerpt from the application to the applicant, explaining the gist of what was included in the application and asked the applicant if that was actually not correct. The applicant confirmed that the claims outlined in the application were not correct.
Out of an abundance of caution, the Tribunal again sought to confirm with the applicant that the claims made in the application were not the truth. The applicant confirmed that the claims were not true. The Tribunal again confirmed with the applicant ‘As I understand your evidence given before the break, you don’t fear harm if you return to Taiwan, it’s more that you enjoy living in Australia and want to keep living here, is that right?’. The applicant said ‘correct’ and later stated ‘I would like to add that even if I return to my home country, I will not face any persecution.’
As discussed with the applicant at hearing, the refugee assessment is concerned with harm directed at someone by reason of their race, religion, nationality, membership of a particular social group or political opinion[1] and complementary protection is concerned with significant harm resulting from the intentional or deliberate acts by third persons.[2] The Tribunal observed that wanting to stay in Australia for personal preference and lifestyle reasons without more will generally not enliven Australia’s protection obligations. In response the applicant stated that he fell victim to a scam from the migration lawyer and was never told the true nature of this visa.
[1] S 5J(1) Migration Act 1958 (Cth)
[2] S 36(2A) Migration Act 1958 (Cth); GLD18 v MHA [2020] FCAFC 2.
The Tribunal accepts the applicant’s oral evidence to be true, that he prefers the lifestyle and environment in Australia, and he has no fear of being threatened or harmed in the event he is returned to Taiwan. Accordingly, the Tribunal does not accept the matters outlined above at [4].
It follows that the Tribunal does not accept there to be a real chance that the applicant would face serious harm for any reason if he were returned to Taiwan. Therefore, the Tribunal does not accept that the applicant has a well-founded fear of persecution if he were returned to Taiwan.
For the same reasons, the Tribunal does not accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Taiwan, there is a real risk that the applicant will suffer significant harm, now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in 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.
Sophia Ziebell-Barnes
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.
…

[2024] AATA 1698

11 April 2024

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