1827948 (Refugee)

[2022] AATA 2620

1827948 (Refugee) [2022] AATA 2620 (19 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1827948

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:K. Chapman

DATE:19 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 19 June 2022 at 7:01pm

CATCHWORDS

REFUGEE – protection visa – Taiwan – fear of harm from loan sharks after parents borrowed money – harassment, assaults and threats to parents and applicant – credibility – vague and unconvincing claims and evidence – no report to police – no supporting documentary material provided – previous visas and travel – no longer in contact with parents – effective state protection available – applicant’s responsibility to specify claims and provided evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (2B), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v MZYYL [2012] FCAFC 147

MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

MIEA v Wu Shan Liang (1996) 185 CLR 259

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

SZATV v MIAC (2007) 233 CLR 18

SZFDV v MIAC (2007) 233 CLR 51

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs, on 11 September 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 1 December 2017. His written claims concern him and his family purportedly being under threat from loan sharks. The delegate refused to grant the visa on the basis that State Protection was available to the applicant if he returns to Taiwan. The applicant applied for review of the delegate’s visa refusal decision on 24 September 2018, providing a copy of that decision with his application.

3. The applicant appeared before the Tribunal, by clear video link from the Melbourne Registry, on 3 June 2022 to give evidence and present arguments. He advised he was comfortable to proceed with the hearing by video link. The review hearing was conducted using the assistance of an interpreter in the Mandarin and English languages. The applicant confirmed he understood the interpreter and there were no other witnesses to be called.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. 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.

7. 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).

8. 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.

9. 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.

10. ‘Significant harm’ for these purposes is exhaustively defined in the Act: s.36(2A) and s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

11. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Relocation

12. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    State protection

13. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

    Mandatory considerations

14. 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

    Country of Reference

15. According to the protection visa application, the applicant claims to be a citizen of Taiwan. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Taiwanese national. Taiwan is therefore the receiving country for the purpose of assessing the applicant’s claims for protection. The Tribunal also notes the applicant was born in [Country 1], to Taiwanese parents, and he advised during the hearing he is only a citizen of Taiwan. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds he is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Issues

16. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Taiwan, there is a real risk he will suffer significant harm.

    Documentary evidence before the Tribunal

17. The Tribunal has its own file, and the Department file, relating to the applicant before it. Information including, but not limited to, the following is contained in those files:

    a.the applicant’s protection visa application forms lodged on 1 December 2017;

    b.the applicant’s passport bio data page; and

    c.Departmental administrative and Movement records.

    Claims for protection

18. The applicant’s written claims for protection are summarised by the delegate in the primary decision as follows:

    ·     “He came to Australia to avoid being hurt and persecuted.

    ·     If he returns to Taiwan and does not repay his debt, both he and his family will face a threat to their lives.

    ·     His parents borrowed money from loan sharks but did not expect their investment to fail.

    ·     Because their investment failed they did not have enough money to repay the loan sharks.

    ·     The loan sharks began to come to the family home to collect the debt and harass the applicant’s mother.

    ·     The applicant and his father tried to stop them and were assaulted.

    ·     The loan sharks threatened to kill the applicant if the money was not paid on time.

    ·     They stalked his family, which made them frightened.

    ·     His family sent him overseas for safety.

    ·     They tried to seek the assistance of the police but they did not help and told them to settle the matter in private.

    ·     They fear if they relocate the loan sharks will be able to find them due to their connections.”

19. The applicant’s immigration history is also summarised by the delegate in the primary decision as follows:

Date	Event details
16 Jan 2014	Applied for a TZ-417 visa
17 Jan 2014	TZ-417 visa granted
[Jul] 2014	Arrived in A/a and immigration cleared
23 Jan 2015	Applied for a TZ-417 visa
03 Mar 2015	TZ-417 visa granted
[Jul] 2016	Departed A/a
20 Oct 2017	UD-601 visa granted
[Nov] 2017	Arrived in A/a and immigration cleared
01 Dec 2017	Applied for an XA-866 visa

The review hearing

1. The applicant’s evidence at hearing may be summarised as follows. He informed the Tribunal that he completed his application for protection by himself and signed it. The applicant indicated all his claims for protection are contained in the protection visa application. He confirmed he understood its contents and that his written claims are accurate. The applicant agreed his application for protection is important to him.

2. The Tribunal canvassed with the applicant his background, confirming his employment and travel history. He was born in [Country 1], to Taiwanese parents, and he is a citizen of only Taiwan. The applicant understands the Mandarin language. He has not been involved in political activities in any country. In Taiwan he had three recent places of residence, two being in Taipei City. The applicant contends he is no longer in contact with his parents in Taiwan. He claims to have last seen them [in] May 2017 at a family dinner.

3. The applicant last departed Taiwan on [Day 1] November 2017. He went to [Country 2] and lived in an airport hotel there for three days, before departing for Australia on [Day 2] November 2017. The applicant told the Tribunal he escaped from Taiwan to [Country 2], to avoid money lenders seeking to harm him.

4. When asked by the Tribunal when he first came to Australia, the applicant advised it was on [Day 2] November 2017. The Tribunal checked with him on several occasions whether he had ever been in Australia prior to that date. The applicant maintained he had not been in Australia prior to November 2017. He told the Tribunal he was sure of this.

5. The applicant claims the reason he travelled to Australia in November 2017 was because something very serious happened. He outlined that his mother had invested in a [business], through borrowing money from ‘underground lenders’, and the business went broke. According to the applicant, [in] May 2017 at the family dinner, debt collectors stormed his parents’ home, hitting them and threatening his own life if the money was not repaid. The applicant was aged [Age] years then and was not hit in the incident because he was a child. The Tribunal asked the applicant, on several occasions, if he could provide further details regarding the alleged assault. He could not remember any further details. The Tribunal also canvassed with the applicant the particulars of the loan taken out, however he advised his parents had not told him of them and he only learned of the loan when the debt collectors assaulted his parents. The Tribunal observed the applicant to provide scant detail of the purported incident with the debt collectors, delivered in a vague fashion at the review hearing.

6. The Tribunal canvassed with the applicant his travel to Australia in 2017. He obtained a Tourist visa but did not make the Department aware of the [May] 2017 incident. According to the applicant, he was always being followed by the debt collectors following the incident, so he could not talk about it until after he arrived in Australia and felt protected. The applicant provided a vague account of being followed and threatened following the purported incident in May 2017. It was bereft of detail and unpersuasive.

7. The applicant claims he departed Taiwan to [Country 2] and then onto Australia once he learned about protection in this country. He claims he travelled to Australia to seek protection. When he landed in Melbourne, he felt very safe because he had learned on the internet that the Australian Government protects people. He indicated he still feared the money lenders in Taiwan at this time. When asked by the Tribunal if he advised Customs Officers upon arrival of his fears, the applicant indicated he did not because he was unsure if he should do so. He indicated he applied for protection on 1 December 2017, the delay attributable to him studying on the internet how to apply because he doesn’t understand the English language.

8. The Tribunal discussed the particulars of employment in Australia with the applicant. He only commenced work in February 2018 after receiving work rights, in association with the protection visa application. He worked in two [Workplaces]. The applicant ceased work in October 2021 due to an issue with work rights on his Bridging visa. He apparently has not worked since that time and sustains himself through savings.

9. When asked by the Tribunal what he fears if he returns to Taiwan, the applicant indicated he was scared of being caught by the illegal money lenders, he is not sure what kind of people they are, and he is scared for his life if he returns. When asked by the Tribunal if he could provide any more detail concerning any harm, or threats of harm, for him or his family in Taiwan, the applicant confirmed he had told everything and he hopes to be protected because he is very scared of going back. The Tribunal confirmed with the applicant again that he had no further information to provide about these matters.

10. The Tribunal canvassed with the applicant whether he reported any harm or threats to the Taiwanese Police. He advised he did not because the money lenders threatened to kill him if he did. When asked by the Tribunal if there is any reason he cannot seek assistance from the Police in Taiwan if he returned, the applicant indicated the Police cannot protect him and his family because they are poor people and therefore the money lenders make the calls. The Tribunal canvassed relocation with the applicant, however he advised Taiwan is a small country and he would be followed wherever he went. The Tribunal raised that the applicant’s background, including living and working in Australia, might tend to suggest that he has the attributes to successfully relocate in Taiwan, inviting his comment. The applicant replied that he cannot go back to Taiwan because of the threatening situation, adding he still has threatening images when he wakes up. The Tribunal asked if the applicant had any documentary evidence to demonstrate his parents took out the loan. He does not. The Tribunal confirmed with the applicant that he had no other fears of returning to Taiwan other than outlined at the hearing thus far. The applicant also confirmed to the Tribunal he provided truthful evidence.

11. The Tribunal raised the immigration history of the applicant with him as outlined in the primary decision record (reproduced above), including first arrival in Australia in 2014 and the possession of two Subclass 417 Working Holiday visas between 2014 and 2016. The Tribunal canvassed with the applicant why he earlier gave evidence indicating he had not been to Australia prior to holding the last Visitor visa, noting it might cause concerns regarding his credibility or truthfulness. The applicant replied because it was too long ago so he could not remember.

12. The Tribunal raised with the applicant that it might have difficulty accepting that he couldn’t remember being in Australia between 2014 and 2016 as the holder of two Working Holiday visas, inviting his comment. The applicant advised he had ‘nothing to say’, as since the day he was threatened he lost his memory. The Tribunal raised with the applicant that in the absence of persuasive medical evidence, it might have difficulty accepting that a loss of memory accounts for his failure to remember he had previously been in Australia for around two years. The applicant was invited to comment but had none to make. The Tribunal raised with the applicant that his evidence concerning his immigration history in Australia might cause it to doubt the credibility of his claims for protection, inviting his comment. The applicant replied that all the things he spoke of are true facts, however the things mentioned in 2014 are too long ago and he can’t remember.

13. The Tribunal raised with the applicant that his evidence at hearing concerning the harm he says he and his family suffered from the money lenders, and associated threats, might appear limited in detail and might cause it to have difficulty accepting the genuineness of his claims. The applicant was invited to comment, responding what he said was fact. The Tribunal raised with the applicant that given he delayed approximately three weeks from his last arrival in Australia before lodging his protection visa application, this might cause it to doubt the credibility of his claims, inviting his comment. The applicant indicated it took him three weeks to lodge because he doesn’t understand English and he had to search online for translation. He added he did nothing else but prepare the application for three weeks after arrival in Australia.

1. The Tribunal discussed open source country information with the applicant indicating the Taiwanese Police have been active in targeting criminal gangs for several years now and that protection from criminal gangs (including illegal moneylenders) would be available to him from the Police and authorities in Taiwan if he returns there. For example, the Taiwanese Police are considered an effective force[1] and they actively target criminal gangs[2]. The judicial process is widely considered to be fair.[3] Corruption in Government is generally low[4] and ‘whistle-blower’ protections are enshrined in law[5]. The applicant was invited to comment. He advised he still feels his life will be threatened, so he doesn’t want to go back to Taiwan. He wants to stay in Australia and doesn’t want to lose his life early.

   [1] ‘Taiwan 2020 Crime & Safety Report’, 17 March 2020, Overseas Security Advisory Council, US Department of State, p.1.

   [2] ‘Law and Order: Taipei police commissioner reassures public on safety’, 7 May 2021, Taipei Times.

   [3] 'BTI 2020 Country Report: Taiwan', 29 April 2020, Bertelsmann & Stiftung, p.10.

   [4] ‘Corruption Perceptions Index 2020', 28 January 2021, Transparency International, p.2.

   [5] ‘BTI 2020 Country Report: Taiwan', Bertelsmann & Stiftung, 29 April 2020, p.29.

2. The Tribunal discussed with the applicant that the incidents of harm and relevant threats he raises took place in 2017. Given the passage of time since these alleged incidents, the Tribunal indicated this might tend to suggest he does not face a real chance of any harm whatsoever if he returns to Taiwan now or in the reasonably foreseeable future. The applicant was invited to comment and responded that given the current situation he still feels very unsafe. The Tribunal confirmed with the applicant he had no further evidence to provide. He noted he wished to stay in Australia under the protection of the Australian Government.

3. The Tribunal raised with the applicant that, whilst it had not made up its mind in this review, it had developed concerns regarding his claims for protection. These included his dubious evidence regarding his immigration history and no medical evidence to support his claim of memory loss, the vague and limited detail of his evidence regarding the alleged incidents with the money lenders, his delay of three weeks after most recent arrival to lodge his protection visa application despite expressly travelling to Australia to seek protection, the passage of time from the alleged incidents in 2017 might tend to suggest there is not a real chance of him facing any harm at all from the money lenders, and the open source country information discussed might tend to suggest there is effective State Protection for him if he returns to Taiwan. The applicant was invited to comment. He had no comment to make. The Tribunal also raised with him that the lack of supporting documentary material regarding the loan might cause it difficulty accepting his claims, inviting his comment. The applicant maintained he had told the truth and he had nothing additional to say.

4. Prior to the conclusion of the review hearing, the Tribunal checked with the applicant whether he had any further evidence to provide. He indicated his family has gone through this life threat and he hopes to stay in Australia for protection. When asked by the Tribunal if he gave truthful evidence at the hearing, the applicant advised he did. The applicant confirmed to the Tribunal he had no further evidence to provide and what he had said had happened.

   Analysis  

5. That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an 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 the statutory elements are made out. 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 (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70. Section 5AAA of the Act also provides that it an applicant’s responsibility to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such claim.

6. The Tribunal accepts the importance of adopting a reasonable approach in making findings of credibility in matters relating to protection visa applications. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made salient comments on determining credibility, including those below. Numerous decisions have also endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

7. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at [39]:

   First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

8. The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. During the review hearing the Tribunal developed serious concerns with the credibility of the applicant’s claims that he (and his parents) had faced, and would face, harm in Taiwan at the hands of illegal money lenders (loan sharks). The Tribunal notes it had the benefit of observing the applicant in a clear video link as he gave his evidence at hearing. He did so in a vague and unconvincing fashion. The applicant was provided with multiple opportunities to provide further detail regarding the particulars of the purported harm and threats of harm from the loan sharks, yet he maintained vagary in his account. Furthermore, the paucity of detail provided by the applicant regarding the purported attack on his parents, with him subsequently being followed, was stark. These matters detract significantly from the genuineness of the applicant’s claims for protection in the view of the Tribunal.

9. That the applicant denied having been in Australia prior to 2017, despite the delegate’s decision outlining him being in the country between 2014 and 2016, also detracts significantly from his credibility. His assertion he lost his memory in 2017, unsupported by any medical evidence, is most unpersuasive. On balance, the Tribunal is satisfied the applicant was untruthful regarding this topic in an attempt to create the impression he was unfamiliar with visa processes and to obscure his motives for making the protection visa application.

10. The significant passage of time since the purported incidents in 2017 also points to there not being a real chance of the applicant facing serious or significant harm from loan sharks, if he returns to Taiwan now or in the reasonably foreseeable future. Further, the lack of supporting documentary material pertaining to the purported loan also detracts from the legitimacy of the applicant’s claims. Additionally, the open source country information discussed with the applicant at hearing indicates there is effective State Protection from loan sharks for the applicant if he returns to Taiwan.

11. Having regard to the matters above, the Tribunal does not accept that the applicant is a witness of candour. Accordingly, the Tribunal does not accept the veracity of his claims for protection. Rather, the Tribunal finds that the applicant fabricated his claims for protection, to enable him to live and work in Australia by misusing the Bridging visa system.

12. Accordingly, the Tribunal does not accept that the applicant (or any member of his family) has ever interacted with loan sharks in Taiwan. Therefore, the Tribunal does not accept that he (or any member of his family) has ever faced, or would ever face, harm in

    
    

    Taiwan from loan sharks or any other person. It follows that the Tribunal is not satisfied Australia’s protection obligations are invoked on the basis of any of the claims that have been raised by the applicant.

13. For completeness, the Tribunal has further considered the country information relating to State Protection, which is referred to above, and finds that the applicant would be able to avail himself of protection from the Taiwanese authorities if he returned to that country. It follows that even if the Tribunal accepted the veracity of his claims that he faced harm from loan sharks, which it does not, the applicant would not be entitled to protection.

    CONCLUSION

14. Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that 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.

15. 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).

16. 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) of the Act.

    DECISION

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

    K. Chapman
    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.

    …