1829297 (Refugee)

[2024] AATA 2501

1829297 (Refugee) [2024] AATA 2501 (14 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Winston Thomas Clarke Mcnamara (MARN: 0746603)

CASE NUMBER:  1829297

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Lisa Lo Piccolo

DATE:14 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 14 May 2024 at 9:17am

CATCHWORDS

REFUGEE – Protection Visa – Taiwan – failed to attend hearing – applicant did not respond to the hearing invitation – fears harm from boyfriend – in a violent domestic relationship and subject to physical, mental and emotional abuse – applicant has not provided sufficient relevant information to support claims – not satisfied the applicant has a well-founded fear of serious harm – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 426, 441, 499

Migration Regulations 1994, Schedule 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [age]-year-old woman from[a] City, Taiwan. 

2. According to records from the Department of Home Affairs (the Department), she arrived in Australia on [date] October 2015 on a UD-601 Electronic Travel Authority.[1]  She had previously travelled to Australia between [date] August 2014 and [date] September 2014, as well as between [date] May 2015 and [date]  July 2015 on a UD-601 Electronic Travel Authority.[2]

   [1] International Movement Records, Tribunal file, 1829297, Doc ID no: 12563235.

   [2] Ibid.

3. On 5 January 2016, the applicant applied for a FA-600 visitor visa, which the Department determined was an invalid application on 6 January 2016.[3]

   [3] Department Decision dated 11 September 2018, Tribunal file, 1829297, Doc ID no: 4788754.

4. On 6 May 2016, the applicant lodged an application for an XA-866 Protection Visa.  On 2 November 2016, this application was deemed to be an invalid application.[4]

   [4] Ibid.

5. On 28 November 2016, the applicant lodged a valid protection visa application. She was granted an associated bridging visa C with condition 8101 attached to it on 9 January 2024.[5]

   [5] IMMI Bridging visa grant notification, Department file ([deleted]), Doc ID 4803306.

6. On 11 September 2018 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant provided the Tribunal with a copy of the Department delegate’s decision.[6]

   [6] Ibid.

7. This is a review of that decision by the Tribunal.

CLAIMS AND EVIDENCE

Protection visa application

1. In her Protection visa application, the applicant claims she left Taiwan to get away from her violent boyfriend as she did not feel safe.

2. The applicant in her statement of claims to the Department dated 23 November 2016, claims she fears returning to her home country because her boyfriend abused her during and after their relationship which included emotional, physical, and mental abuse. She claims he hit her, and gave her bodily injuries, and threatened to kill her when she ended the relationship. He also threatened her parents when they tried to speak to him: telling them that he would hurt the applicant more and hurt her siblings if they tried to interfere. She reported his violence to the police on more than one occasion however they told her it was a personal matter.  She claims she is unable to relocate as she cannot find a safe place in Taiwan.  She fears returning to Taiwan because her boyfriend has been searching for her at her parent’s place since she came to Australia.

3. The applicant was not invited to a Departmental interview, and on 11 September 2018, the delegate refused to grant her a Protection visa.

The review application

1. The review application was lodged on 7 October 2018 by the applicant’s representative, Mr Winston Thomas Clarke McNamara (RMA 0746603) who was also authorised to receive documents in connection with the review.  The Tribunal has not been informed that the applicant has changed her contact details and has not withdrawn or varied the appointment of her representative.

2. On 8 October 2019, the Tribunal sent the applicant a letter acknowledging receipt of the review application.  Among other things, the Tribunal informed the applicant that if she wished to provide material or written arguments which supports her application including a statement setting out why she disagrees with the Department’s decision, for the Tribunal to consider, she should do so as soon as possible. 

3. On 6 November 2018, in reply to the acknowledgment letter, the applicant’s representative sent an email to the Tribunal which indicated that the applicant was wishing to make a submission. At the time of the decision, the applicant has not provided any written submission or material to the Tribunal.  In fact, neither the representative nor the applicant have had any contact with the Tribunal since that time and have not taken any steps to progress the review application. 

4. On 27 February 2024, the Tribunal sent the applicant a Pre-hearing information form.  The form was sent to the representative to the email provided in her review application form for the giving of documents.  The Pre-hearing information form informed the applicant that once her case had been given to a Tribunal Member, the Tribunal Member may invite her to attend a hearing to give evidence and present arguments about the issues in her case.  The applicant was advised that she can choose not to have a hearing for her case if she wants the Member to make a decision based on the information she has already provided.  The applicant was advised that the Tribunal may either ‘affirm’, or ‘set aside’ the decision under review in this circumstance, and a link to information about decisions was also provided where the applicant could obtain more information.  The applicant was also advised that additional information may also be provided along with the form.  The Tribunal did not receive a response.

1. On 18 March 2024, the Tribunal wrote to the applicant advising that it had considered all the papers relating to her application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before the Tribunal on 13 May 2024 at 10.00am to give evidence and present arguments relating to the issues arising in her case.  The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision in the case without further notice.  The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

2. The applicant did not respond to the hearing invitation and did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. 

3. The Tribunal accepts that proceeding to make a decision on the information before it is a discretion that should be exercised reasonably.  The Tribunal is mindful of the requirement to be fair and just, as well as to be economical and quick.  However, having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited in accordance with s 441A(5), and two separate SMS reminders were successfully sent to the applicant about the hearing.  The Tribunal is also satisfied that the applicant has not been engaged in the review process whatsoever, and despite indicating an intention to lodge a submission in support of her submission on 11 November 2018, she has taken no steps to do so in more than 5 ½ years.

4. In the circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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) (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.

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. 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.

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’).  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) as follow (and extracted in the attachment to this decision). 

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

Reasons and findings

1. The mere fact that a person claims a fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well founded’ or that it is for the reason claimed.  Similarly, 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. A decision-maker is not required to make the applicant’s case for him or her.  It is the responsibility of the applicant to satisfy all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA.  Nor is the Tribunal required to accept uncritically any, and all the allegations made by an applicant.[7]

   [7] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-170.

2. The applicant has provided insufficient information regarding her claims for protection.  She has made claims that she was in a violent domestic relationship and subject to physical, mental and emotional abuse.  She also claims her boyfriend threatened her and her family and she left Taiwan in fear that her life is in danger.  She claims she was injured and made multiple reports to the police but she has provided insufficient information of her circumstances in Taiwan, the status of her relationship when she departed Taiwan (let lone now), the nature of the injuries she sustained, whether she required medical attention, when and to whom the police reports were made, and more detailed information to explain the content of her statement of claim.  There is insufficient detail provided regarding her claims to fear harm if she returned to Taiwan. 

3. There is insufficient detail in the applicant’s written evidence regarding the exact nature of the harm she fears, whether the harm she fears will amount to serious harm, and whether there is a real risk she will experience serious harm, or significant harm if removed to Taiwan.  As a result, the evidence presented by the applicant to the Department is not sufficiently detailed to enable the Tribunal to be satisfied that she faces a real chance of persecution in Taiwan or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm. Given this lack of information, without more detail, it is difficult to know what significance can be attributed to her assertions.

4. Accordingly, the Tribunal is not satisfied, on the material before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.  Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm.

5. 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).

6. 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

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

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.

…

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.

1. 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.

2. 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.

3. 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.

…

1. Protection visas – criteria provided for by this Act

…

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.

…