1820423 (Refugee)

[2024] AATA 2747

1820423 (Refugee) [2024] AATA 2747 (24 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820423

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Lisa Lo Piccolo

DATE:24 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 24 June 2024 at 8:46pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – ethnicity – born in third country, citizen by descent and renounced birth country citizenship – original claims of fear of harm from underground bank and gangs – parents beaten – evidence of loan accepted, but vague and inconsistent evidence of harm and loan paid in full – new claims made pre-hearing of discrimination and abuse in education, employment, public services and daily life – vulnerable state of mind and no appreciation of importance of providing all claims – no adverse inference drawn – limited official country information but academic and news sources support experiences and claims – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
BBK15 v MIBP (2016) 241 FCR 150
MZAAJ v MIBP [2015] FCA 478
SZSPT v MIBP [2014] FCA 1245

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Taiwan, applied for the visa on 12 January 2018. The delegate refused to grant the visa on the basis that [insert brief reason].

3. The applicant appeared before the Tribunal on 8 May 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

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

Refugee criterion

1. 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.

2. 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).

3. 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.

4. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).  Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b) and (c).

5. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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. A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).  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.

7. Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim.  The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim.[1]  The Tribunal also does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act.[2]

   [1] See ABT16 v Minister for Home Affairs [2019] FCA 836.

   [2] Abebe v Commonwealth of Australia (1999) 197 CLR 510.

Complementary protection

1. 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’).

2. Section 36(2A) of the Act makes provision for, and exclusively defines that a

   
   

   non-citizen will suffer significant harm if: they will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the non-citizen; or the non-citizen will be subjected to torture; or the non-citizen will be subjected to cruel or inhuman treatment or punishment; or the non-citizen will be subjected to degrading treatment or punishment.[3]

   [3] Torture, cruel and inhumane treatment or punishment and degrading treatment and punishment are further defined in s 5(1) of the Act.

3. The circumstances in which a person will be taken not to face a real risk of significant harm are set out in s 36(2B), which states the Minister is to be satisfied: that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm (s 36(2B)(a)); or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm (s 36(2B)(b)); or the real risk is one faced by the population of the country generally and is not faced by them personally (s 36(2B)(c)).  The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply.[4] However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.[5]

   [4] BBK15 v MIBP (2016) 241 FCR 150 at [32].

   [5] The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245 and MZAAJ v MIBP [2015] FCA 478) indicates that s 36(2B)(c) will apply where a real risk is faced by an individual applicant but is the same as the risk faced by the general population.

Mandatory considerations

1. In accordance with Ministerial Direction No. 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

Country of nationality

1. The applicant travelled to Australia on an apparently genuine Taiwanese passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Taiwan, and he has been assessed on that basis by the Department. The Department was satisfied that his Taiwanese passport was a genuine document. 

2. The Tribunal finds he is a Taiwanese citizen and has assessed his claims against Taiwan as her country of nationality and the receiving country.

The applicant’s personal background

1. The applicant is a [Age]-year-old male who was born in Myanmar.  He has been living in Taiwan since he was a child.  He obtained Taiwanese citizenship through his [ancestor] who fought in the second world war against Japan for Taiwan, and whose descendants were all entitled citizenship in perpetuity for his allegiance to Taiwan.  He renounced his Myanmar citizenship as a result.  In his Protection visa application, he stated that his mother and father reside in Myanmar but are also citizens of Taiwan.  No other family members were included.  At the hearing, the applicant told the Tribunal that he has a [Age]-year-old brother who is in jail in Myanmar for 20 years as a result of his involvement in an anti-government demonstration, and a [Age]-year-old sister. 

2. According to his Protection visa application, the applicant moved to Taiwan in [Year].  However, at the hearing, the applicant told the Tribunal that he moved to Taiwan when he was 16 years old.  He did not do any formal education in Myanmar but was assisted to learn through social workers.  He then went on to study a Diploma of [Subject].  Due to problems, he experienced in Taiwan, it took the applicant longer than the course duration to complete the course and he ultimately obtained his qualifications in 2008.

3. After completing his studies, he struggled to obtain work in his field and started working in a [workplace].  He was never able to obtain employment in the [work sector] despite his qualifications and his attempts.

4. The applicant first travelled to Australia [in] August 2014 as the holder of a Temporary Working Holiday (subclass 417) visa.  The applicant then returned to Australia [in] December 2017 as the holder of an Electronic Travel Authority (subclass 601) visa.  He applied for a Protection visa on 1 March 2018.

5. The Tribunal accept the above matters to be true.

The applicant’s claims for protection

1. In his protection visa application, the applicant claims he fears harm from an underground bank he borrowed money from. He stated that the underground bank sent people to his house and his parents were beaten by them.  He contacted the police who did not help him.  He claims the underground bank were protected by a gang.  He came to Australia to get away from them but they kept sending people to harass and threaten his parents, so he returned to Taiwan.  However, the ‘gangdom’ learnt of his whereabouts and sent people looking for him.  He was so fearful of his life that he fled Taiwan.  His fear is that he will be hurt by the gangs connected to the underworld bank if he returns to Taiwan.

2. In a Pre-Hearing Information Form lodged with the Tribunal on 4 February 2024, the applicant was asked if he wanted to provide any more information about his claims for protection, and whether there are other reasons why he is afraid to return to his home country. The applicant stated that his life was threatened in Taiwan, and he has been severely discriminated there.  He stated that he borrowed money from an underworld bank to pay for his mother’s [medical condition] treatment. He stated that the loan has been paid off but the borrower keeps asking him for higher interest and threatened to kill him of he doesn’t give him the money.  He referenced a fear also of returning to Myanmar as a result of arrests by Myanmar military junta for those participating in democracy rallies.  His brother is anti-junta and pro-democracy and was put in prison for 20 years. 

3. At the hearing, the applicant reiterated the same claims he included in the Pre-Hearing Information Form.  He admitted that the claims in his Protection visa were not accurate.  He confirmed that he did take out a loan in January 2014 for NTD$200,000 which is approximately AUD $9-10,000.  The loan was for 6 months, and he was making weekly payments of NTD $10,000 including interest.  If a payment of NTD $10,000 was not paid, he accrued a further 20% interest.  He told the Tribunal he paid off the loan and interest, but it took him ‘a little more than 6 months.’  He said they became violent.  In July 2014, he was visited by the ‘agent’ he took the loan from and told if he does not make another payment of interest, they will be hiding behind the corner and will kill him.  He said he received text messages on his phone which he does not have anymore.  The applicant said this continued until he came to Australia on his subclass 417 visa.  He said he believes they thought they could get more from him because he is not Taiwanese born and the police don’t help either.

4. At the hearing, the applicant elaborated his claim that he fears discrimination if he returns to Taiwan.  He claims that:

   a.He has suffered significant discrimination since he has lived in Taiwan, and it has left him in a very unhappy and depressed state.  He tried to take his own life in the past because that seemed like the only way to escape the daily discrimination he experienced.  He sought medical help and was told ‘go home, don’t stress and read a book.’ 

   b.He was discriminated against because he was Burmese[6] (from Myanmar) and the Taiwanese people think they are backward.  He regularly gets asked if he swam to Taiwan or came by boat.  He described being teased repeatedly for being from Burma and beaten up ‘so many times.’ 

   c.When he was at school from 16 years old, he was beaten every day.  He was alone in Taiwan without his parents and got so stressed by the constant beatings and fear that he would be beaten up, that all his hair fell out.  The applicant struggled through tears as he gave this evidence and told the Tribunal ‘I really don’t want to talk about these things.’ 

   d.He continued to experience these problems when he was studying his diploma.  He found studying very difficult and had no support.  He was always by himself.  He was excluded from study groups because all the students were Taiwanese.  There were few if any other Burmese students at the university.  He was often abused and the subject of racial comments.  As a result, he was ostracised. 

   e.Since he completed his studies, he has found it impossible to get a job in [work sectors] because of discrimination.  Despite his qualifications, he tried ‘for years’ to get a job in his industry but never got a job.  Even if he got past the application stage, once they realised, he was not Taiwanese, he never got the job.  The only job he could get was in [workplaces doing a job task] – a poor mans job.  He was treated poorly in his jobs and subject to discrimination in wages, as well as terms and conditions.  He was also often verbally abused.  Because he was working in a [workplace], he was unable to get a loan from a bank: they did not trust him because he was Burmese.

   f.He fears discrimination from government and other public institutions in Taiwan who have denied him access to various services in the past.  This is because, when he tried to access public institutions, he was treated like a second-class citizen.  To get documents processed was always a nightmare.  Something that would take a Taiwanese person ‘5 minutes’ to obtain, would take him ‘so long’.  They would ‘drag it out’ and most times they ‘never give it to him’. 

   g.Even when he lived thirty minutes from New Taipei Zhonghe District where the biggest Burmese Chinese community reside in Taiwan, he still experienced the same thing.  Daily verbal abuse and discrimination.  The other Burmese people were the low skilled workers and not the landlords or business owners.  He experienced discrimination everywhere. The verbal abuse and discrimination were something he was subjected to on an almost daily basis during the almost decades that he lived in Taiwan. 

   h.Before he came to Australia, he was beaten by his landlord because he reported a faulty faucet.  The landlord swore at him and made racial comments about him being a Myanmar person and being so longwinded.

   i.He is scared to return to the violent and discriminatory behaviour and abuse he has experienced in Taiwan.  He is still suffering from the shadows of the past of being beaten up.  He fears Taiwanese people will continue to commit violence on him if he returns to Taiwan.

   [6] In this decision, the Tribunal refers to Burmese Chinese migrants and Burmese, largely because this is how the applicant referred to them, and how they are referred to in most of the literature discussing them.  The Tribunal is aware of the ongoing various uses of (and debates around) ‘Burma/Myanmar’ in government, academic and media publications. No political inference is intended by the use of the term ‘

Section 423A

1. Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred.  The applicant did not mention that he feared societal discrimination if he returned to Taiwan.  The Tribunal accepts this to be because the applicant was in a depressed and vulnerable state of mind when he came to Australia.  The Tribunal also accepts that the applicant did not at that time appreciate the importance or consequences of not providing all his claims in his visa application.  The Tribunal accepts there is a reasonable explanation as to why those matters were not presented to the primary decision maker and draws no adverse inference to the applicant’s credibility.

2. Further, notwithstanding the fact that the applicant’s has changed his claim regarding his loan in Taiwan, and the failure to raise the real claims in his Protection visa application, the Tribunal accepts based on the evidence before it that the applicant’s fear of harm for the newly raised claims is genuine.

Country Information

1. The current population of Taiwan in 2024 is 23,950,214.[7]  Taiwan’s population is about 96% Hans Chinese with a small number of racial minorities.[8]  Based around Huaxin Street in New Tapei City’s Zonghe District, there is a community of over 40,000[9], the majority of whom are from overseas Chinese (Huaqiao) and their descendants.  However, people are more familiar with its nicknames of “Myanmar Street” and “Little Burma.”[10]  The area emerged amid controversy in the early 1950’s after Kuomintang (KMT) stragglers from the Chinese Civil War carved out a fiefdom on Burma’s easter border with China. Few remain from that generation, but many Burmese Chinese were welcomed with minimum fuss by a KMT government that previously encouraged Huaqiao immigration.[11]

   [7]

   [8] This has been the estimated population since 2017.  See; see also;

   [11] >

   Country information supports that Burmese Chinese migrants have been granted citizenship based on familial ties with former Chinese Nationalist Party soldiers Burmese’.[12]

   [12] Familial ties with former Chinese Nationalist Party soldiers Burmese’.

2. The Constitution of the Republic of China (Taiwan) prohibits discrimination based on race, sex, religion, political opinion, national origin or citizenship, social origin, disability, sexual orientation and gender identity, age, language, or HIV or other communicable disease status, and the authorities effectively enforced these prohibitions..[13]

   [13]

3. There is limited country information regarding Burmese Chinese migrants in Taiwan. The Tribunal has been unable to locate country information which indicates widespread discrimination of Taiwanese citizens from Myanmar descent.  There are however several sources which record individual interlocutors discussing their experiences of perceived discrimination, some sources which indicate a lack of discrimination experienced by Burmese Chinese migrants in Taiwan, and other sources which indicate that particular migrants harbour perceptions of everyday discrimination.[14]

   [14] Tasaw Lu, Hsin-chun 2008, ‘Festivalizing Thingyan, negotiating ethnicity: Burmese Chinese Migrants in Taiwan’, Journal of Burma Studies, Vol.12, p.44; Chang, Wen-Chin 2014, Beyond Borders: Stories of Yunnanese Chinese Migrants of Burma, Cornell University Press, Ithaca, pp.140-141.

4. A 2008 academic article published in the Journal of Burma Studies[15] provides one of the few academic studies of Taiwan’s Burmese Chinese community, noting that local attitudes towards Burmese Chinese migrants tend to consider them as inferior ‘Others’.[16]

   [15] The Journal of Burma Studies describes itself as ‘one of the only scholarly peer-reviewed printed journals exclusively on Burma. The Journal of Burma Studies is jointly sponsored by the Burma Studies Group and the Center for Burma Studies at Northern Illinois University’.

   [16] Tasaw Lu, Hsin-chun 2008, ‘Festivalizing Thingyan, negotiating ethnicity: Burmese Chinese Migrants in Taiwan’, Journal of Burma Studies, Vol.12, pp.29-62 (see p.44)

5. Addressing the question of societal treatment, researcher, and author Tasaw Lu also notes that many local Taiwanese consider Burmese Chinese migrants as inferior, in part because of the unskilled labour many of them perform:

   The Taiwanese government describes them as Guiqiao (Returning Overseas Chinese), and Burmese Chinese call themselves Bama/Myanma-pyan (returners from Burma/Myanmar), which both connote their desire to return home and their Chinese allegiance. Even so, many local Taiwanese treat the returners as social and financial inferiors, and as Others.[17]

   …

   Most Burmese Chinese, especially newcomers, make a living by working as unskilled laborers … Therefore, many Taiwanese treat them as low-status Others, the same way they treat temporary workers from other Southeast Asian countries.[18]

   [17] Tasaw Lu, Hsin-chun 2008, ‘Festivalizing Thingyan, negotiating ethnicity: Burmese Chinese Migrants in Taiwan’, Journal of Burma Studies, Vol.12, p.44.

   [18] Ibid.

6. The view that anyone not ethnically Hans-Chinese or local Taiwanese face discrimination was highlighted in a 2016 Article ‘Yes, Racism Exists in Taiwan’:

   There’s also a veneer of prejudice, or flagrant lack of concern for anyone not ethnically Han-Chinese, that coats discussions about immigrants from Southeast Asia. This discrimination stems from classism in the region, straight up pure prejudice against people of a different skin tone, or (most likely) both.  …The issue here is not [the migrants] legal status - … but pure discrimination..[19]

   [19]

7. This same sentiment was expressed in a New Bloom Magazine Article on 26 November 2023, when it was reported that:

   ‘Discrimination … already exists in Taiwan against migrant workers, who take on the “dirty, dangerous, and demeaning” jobs that Taiwanese themselves do not want to undertake in fields ranging from taking care of the elderly to factory work or work on migrant fishing vessels.’

Does the applicant meet the refugee criterion?

Claim to fear an underground moneylender

1. The Tribunal has considered the applicant’s claim that he has a well-founded fear of persecution by reason of his membership of a particular social group as a person who will suffer serious harm due to owing money to an agent of an underground bank (loan shark) if he returned to Taiwan. 

2. The Tribunal accepts that the applicant took out a loan in January 2014 for NTD$200,000, that the loan period was 6 months, and he was required to make weekly payments of NTD $10,000 including interest.  The Tribunal also accepts that the applicant accrued a further 20% interest as a result of making the final monthly payment late.  The Tribunal also accepts that the loan has been paid in full. 

3. The applicant’s evidence regarding the loan amount and terms were clear, coherent and consistent.  However, the applicant’s evidence of being harmed or threatened by the loan shark was vague and undetailed.  He did not provide details of when he was threatened or by who, and what interest was being sought.  He simply stated that ‘they threatened to kill him’ if he did not make the additional interest payments. 

4. The Tribunal does not accept that he has established his claim that he failed to repay the interest on the loan, or that he was warned or threatened by the agent of the underworld bank.  For these reasons, the Tribunal does not accept that there is a real chance the applicant will face serious harm if he returns to Taiwan because he owes money to a money lender in Taiwan. 

5. The Tribunal is not satisfied that if the applicant returns to Taiwan now or in the foreseeable future that there is a real chance, he will face persecution.

Fear of Discrimination or mistreatment

1. The Tribunal finds that the applicant has a subjective fear of persecution now and in the foreseeable future because he will be harmed and discriminated against because of his nationality.

2. In assessing the risk of harm to the applicant, the Tribunal has had regard to the law in Taiwan regarding discrimination, as well as country information which indicates that whilst there is no country information supporting widespread discrimination of Taiwanese citizens from Myanmar descent, it does support that local attitudes towards Burmese Chinese migrants tend to consider them as inferior and can result in them being treated less favourably and subjected them to mistreatment and discrimination.

3. Based on the available evidence, the Tribunal accepts that:

   a.He moved to Taiwan alone when he was 16 years old.  His parents and siblings remained in Myanmar.

   b.He had a very difficult time at middle school and was verbally teased and abused for being from Myanmar.  He was also beaten up on a regular basis – often daily because he was from Myanmar and not born in Taiwan. 

   c.He lived in constant fear of being verbally and physically abused each day such that he went bald whilst he was still attending middle school.

   d.He continued to experience discrimination when he went to college.  He was excluded from study groups by the Taiwanese students and left to study alone.  He was ostracised and subject to verbal abuse and racial comments.

   e.He has suffered significant discrimination in all other areas of his life.  He feels like his life is meaningless and he is miserable.  He suffers from depression and anxiety caused by the vilification he has been subject to in Taiwan.  He has been left in a vulnerable mental health state which resulted in him attempting to end his life on more than one occasion. 

   f.He made continuous attempts over many years, without success, to gain employment using his [qualifications].  Based on country information which indicates that local Taiwanese consider Burmese Chinese migrants as inferiors, the Tribunal accepts that it is not farfetched or remote that the applicant was unable to obtain employment in the [work sectors] because he was not a local Taiwanese person, but rather, a Taiwanese citizen of Myanmar descent. 

   g.He had negative experiences with government authorities and public institutions in Taiwan and was subject to long processing times, and often unable to access the service he required.  However, there is insufficient evidence to support that this was due to his nationality.

   h.He was unable to obtain a loan from a bank in Taiwan but does not there is no independent evidence to support that this was because he is Burmese or of Myanmar descent.

   i.He was subject to racial comments from his previous landlord in Taiwan on a regular basis and was beaten by him when he reported a faulty faucet.

4. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted.  A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[20]

   [20] Chan Yee Kin v MIEA (1989) 169 CLR 379.

5. The Tribunal has had the benefit of hearing from the applicant.  The applicant was particularly distressed when he gave evidence about his experiences in Taiwan as a teenager, a college student and as a worker, and about the beatings, verbal abuse, and overt discrimination he had been subjected to in Taiwan.  His evidence left no doubt in the Tribunal’s mind that he has faced significant ill-treatment, violence, ostracization and discrimination by reason of the fact he migrated from Myanmar.  The impact of this violence, ill treatment and discrimination on the applicant was pervasive despite the passage of time.  The applicant provided graphic details of the ongoing mental health struggles he has faced because of his experiences including the attempts to end his own life.

6. In view of the above, the applicant accepts that the applicant has personally experienced discriminating, abusive and harassing behaviour in Taiwan on account of his nationality and finds that the applicant would face a real chance of societal discrimination, ill treatment and/or harassment if he returns to Taiwan which is not remote or farfetched.  The Tribunal finds the applicant would face a real chance of serious harm now or in the foreseeable future if he returns to Taiwan.  The Tribunal is satisfied the harm feared would on a cumulative basis amount to serious harm under the Act, including significant physical harassment of ill-treatment of the applicant, would involve systematic and discriminatory conduct, and would be for the essential and significant reason of her nationality.

7. The Tribunal is satisfied that the persecution feared by the applicant relates to all areas of Taiwan.  The applicant has lived close to New Tapei City’s Zonghe District for much of his adult life in Taiwan.  This is where he was subject to most of the persecution, he claims despite this being where the majority of the 40,000 Burmese Chinese in Taiwan reside.  The Tribunal is satisfied that effective protection measures are not available to the applicant as part of the persecution feared by the applicant involves state actors that operate throughout Taiwan.

8. In view of the available information, the Tribunal is satisfied the applicant has a well-founded fear of persecution for reasons of nationality if he were to return to Taiwan, now or in the reasonably foreseeable future. It follows that the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Lisa Lo Piccolo
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.

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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.

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1. Protection visas – criteria provided for by this Act

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1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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