1830123 (Refugee)

1830123 (Refugee) [2023] AATA 3928 (9 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1830123
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Paul Noonan
DATE:9 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 9 August 2023 at 9.46am

CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from criminal gangsters – no protection from authorities – vague, contradictory, improbable and unconvincing evidence – no real risk or significant harm from gangsters or any other authority – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K-LA 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Guo v MIEA (1996) 64 FCR 151
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Taiwan, applied for the visa on 14 October 2015. The delegate refused to grant the visa on the basis that the evidence given in support of the applicant’s protection claims was not credible and there were no grounds established that would require the Commonwealth to provide the applicant with protection.
On 20 July 2017 the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the delegate’s decision. On 15 November 2017 the Tribunal (differently constituted) affirmed the delegate’s decision, and that decision was subsequently remitted by consent from the Federal Circuit Court on 23 August 2018. The remittal reasons are as follows:
The MIBP accepts that the Tribunal fell into jurisdictional error by failing to put information it considered would be the reason, or part of the reason, for affirming the decision under review, to the applicant pursuant to section 424A of the Migration Act 1958 (Cth), comprising movement details obtained from the first respondent’s database (second respondent folio 10) which recorded that:
a. the applicant first arrived in Australia in April 2013, which the Tribunal found undermined the applicant’s claims that be worked in [business 1] in Taiwan from 2013 to 2015 (second respondent’s decision at paragraph 21);
b. the applicant was in Australia in 2014, which the Tribunal found undermined the applicant’s claims that gangsters approached him in Taiwan in 2014 (second respondent’s decision at paragraph 24); and
c. the applicant returned to Taiwan in April 2015, which the Tribunal found undermined the applicant’s claim to fear harm from criminal gangsters there (second respondent’s decision at paragraph 33).
The matter is now before the Tribunal pursuant to this order of the Court.
The applicant appeared before the Tribunal on 21 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs. A country information assessment for Taiwan has not been prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes and the Tribunal has, where appropriate, referred to other country information sources to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee or complementary protection criteria.
The delegate was satisfied that the applicant’s country of nationality is Taiwan, and the Tribunal is also so satisfied, on the basis of his Taiwan passport, a copy of which is retained on the Department file, and accordingly has assessed his claims with respect to Taiwan as the country of reference or receiving country for the purposes of this appeal. The applicant has not made claims nor is there any evidence to indicate that he has a right to enter and reside in any third country. The Tribunal finds he does not have such a right.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is [age] years old. He declared that he was a Taiwanese citizen. He arrived in Australia [in] April 2013 as the holder of a Subclass 417 working holiday visa. The visa was valid until 13 April 2014. On 7 April 2014 the applicant was granted a second Subclass 417 visa, which was valid until 13 April 2015. The applicant returned to Taiwan on [in] April 2015 and came back to Australia [in] August 2015. The applicant applied for the protection visa on 14 October 2015.
Non-disclosure certificate
The Department file contains a non-disclosure certificate issued under s 438 of the Act on 29 May 2019. At the commencement of the hearing the Tribunal made the applicant aware of the existence of this non-disclosure certificate. The Tribunal gave a copy of the certificate to the applicant and informed him that it considered the certificate to be valid. The Tribunal invited the applicant to make a submission as to the certificate’s validity or otherwise. The Tribunal then informed the applicant that it does not consider the information covered by the non-disclosure certificate to be relevant to the review. The Tribunal then broadly described to the applicant the information covered by the certificate and noted that it does not contain information relevant to the applicant’s claims to fear persecution in Taiwan. Rather, the information merely states that he applied for a refugee visa and alleges he used illegal ways to stay in Australia. As such, the Tribunal informed the applicant that it will not be considering or giving any weight to this information in its deliberations as to whether the applicant is owed protection from the Commonwealth with respect to his fear of persecution in Taiwan. The applicant accepted the Tribunal’s disclosure and explanation and did not seek to make submissions on either the validity of the non-disclosure certificate or the Tribunal’s proposed course of action with respect to the information subject to the non-disclosure certificate.
Summary of substantive claims
According to the applicant’s protection visa application, he claimed to work for [Company 1]in Taiwan. He claims that in the course of his job he discovered the activities of underworld criminal gangsters, which he intended to make public. After the gangsters became aware of his plans, they started monitoring him and his parents. He claims his parents were harassed and assaulted. He claims he was physically assaulted. He claims the gangsters are associated with the police, so he did not seek help from the authorities. He can’t relocate to another part of Taiwan because the gangsters have influence around Taiwan. When he returned to Taiwan the gangsters continued to harass and watch him. He can no longer work for [Company 1] for fear of exposing himself to the gangsters.
Evidence from the hearing
Prior to the hearing the applicant made a written submission that he has lived in Australia for a long time and has made a significant contribution to society by paying taxes. The Tribunal reiterated that all it can decide is whether he is owed protection. The applicant informed the Tribunal that, for the past five years in Australia, he has worked as a [Job 1].
The applicant then informed the Tribunal that in Taiwan his employer had borrowed money from a gangster and his employer then fled and the gangsters came looking for him to try to locate his old boss. The Tribunal reiterated the applicant’s written claims and then noted his claim with respect to his boss. The applicant confirmed this reflects all of his reasons for seeking protection.
The Tribunal asked the applicant to clarify whether his original claim to have worked for [Company 1]and stumbled into gangster activity is correct. The applicant stated that initially he had intended to disclose what the gangsters had done but because his boss owed them money, their behaviour towards him was getting worse. When asked what his boss’s role or job was, the applicant appeared unsure and gave a general description that he was an organiser of[Company 1].
When the applicant was asked what his role in [Company 1] was, he stated he was responsible for [Job 2]. When asked what his tertiary education comprises, the applicant stated that he has a bachelor’s degree in [course deleted]. The Tribunal asked the applicant how he ended up working in [Job 2] if he is an [Profession 1]. The applicant submitted that he was forced by his parents to study that, and it was not what he was interested in.
The Tribunal asked the applicant what he had discovered about the gangsters. The applicant said that they had lent money to his boss at a very high interest rate. He had discovered this when a gangster had told him about this. When asked why a gangster would tell him that, he stated that they had not told him directly and in fact he had found out from an acquaintance. When asked how the gangsters had become aware of his knowledge, he stated somewhat confusingly that he was not sure if the gangsters knew of these things.
The Tribunal put to the applicant that in his original claim for protection he had stated that he had discovered the gangsters’ activities and that he and his parents were intimidated and assaulted by them in order to dissuade him from disclosing their activities. However, now he has given evidence contradictory to that claim to the Tribunal in that he is not actually sure if the gangsters knew of his knowledge of their activities. The applicant then clarified that the gangsters discovered his knowledge later on. When asked how they became aware of his knowledge and intention to disclose their activities, the applicant stated that it was when he was trying to find some evidence and the gangsters found him and they just knew. He was trying to collect some video recordings of what the gangsters had said to his boss. When asked what happened when they found him doing this, the applicant said they took all of his video recordings away from him and assaulted him. The Tribunal asked the applicant why he would become involved with his boss in this way. He simply stated that he liked his boss. When asked what the situation for his boss is today, the applicant stated that he has lost contact with him and does not know. His last contact with him was probably over nine years ago. The Tribunal asked the applicant how he knows, after such a long time, whether his old boss still owes money, or whether the gangsters are at all adversely interested in his boss or himself. The applicant stated that he is not sure. However, he is still afraid they may harm him if he is required to return.
When asked if his parents were assaulted by gangsters, the applicant stated that the gangsters had just phoned them to ask after him. When asked why he had previously claimed his parents were assaulted in his written claim, the applicant then stated that they had tried to, but he had done something to prevent this. The Tribunal noted that he has given contradictory evidence as to whether his parents were assaulted. He then stated that later, the gangsters had found his home. He reported this to the police. The police took a statement, but they could not locate the gangsters.
The Tribunal put to the applicant that in his original claim for protection he had stated that he had not sought help from the authorities. The Tribunal put to the applicant that he has given contradictory evidence now that he had sought help from the authorities. The applicant stated that he can’t remember very well. He thought he had reported it, but the police didn’t help him much.
When asked again if the gangsters had actually assaulted his parents, the applicant then stated that they had attempted to do so. He prevented them. When asked for details of this, the applicant stated that he found people to help him, and they warned the gangsters off. When asked again to confirm if his parents were ever actually assaulted, as he had claimed, the applicant stated vaguely that after a while he did not live with his parents, so he is not sure. When asked for details of the people he found to help him, he then vaguely stated they were other gangsters. He paid them money to help him get rid of the gangsters. When asked if there was a reason he had not mentioned this before now, the applicant stated that it was just because this had been one time help.
When asked to clarify if he was actually physically assaulted himself or not, the applicant stated that yes, the gangsters had done this. When asked when this occurred, the applicant stated it was before he left Taiwan. When asked where this had occurred, the applicant stated it was in a parking place. When asked what he was doing there, he stated they were waiting for him in the parking area. He stated this was the only time he was physically assaulted. Other times they verbally assaulted him. When asked what reason was given for the assault, he stated they had attacked him without telling him why. The Tribunal put to the applicant that it would appear unlikely he would be attacked by gangsters for a reason without that reason being given. The Tribunal asked him how he knew it was the gangsters associated with his boss and not just a random attack. The applicant stated that he guessed it was the gangsters. The Tribunal put to the applicant that earlier he had told the Tribunal that he had been assaulted by gangsters when he had been found trying to film their interactions with his boss. However, now he had just given evidence that the only time he had been assaulted was in a car park and that he had just guessed it was an assault by the gangsters. The Tribunal put to the applicant that this appears to be highly contradictory evidence. He then stated that they had attacked him when they discovered him videoing them but not that seriously.
The Tribunal put to the applicant information under s 424AA of the Act that may be adverse to his claims. The Tribunal put to the applicant that in his evidence given to the previously constituted Tribunal, he had stated that he was never physically assaulted by the gangsters and that this appears to contradict his evidence given to this Tribunal, that he was assaulted by the gangsters. The applicant then stated that in relation to the past claimed assault, it is his best guess that it was by the gangsters.
The Tribunal confirmed with the applicant that he claims to have worked for the boss subject to the gangster interest prior to first coming to Australia. The Tribunal noted that this was therefore prior to 2013. The Tribunal noted that he then spent two years in Australia and also returned to Taiwan prior to applying for protection. The Tribunal put to the applicant that it may expect that, if he had been threatened by gangsters related to his old boss, he would have applied for protection as soon as possible. Further, it may expect that he would not have voluntarily returned to Taiwan for several months if he genuinely feared serious harm from the gangsters. The Tribunal put to the applicant that these considerations may cause it to doubt that he ever feared serious harm from gangsters in Taiwan and that his eventual decision to lodge a claim for protection was merely an attempt to achieve a migration outcome. The applicant responded that when he returned to Taiwan, he had heard the gangsters were still looking for him, so he then decided to seek protection. Prior to that people had told him about disadvantages associated with the protection visa so he wanted to think about it for a while before lodging a claim. This was because he knew he could not apply for other visas and could not come to Australia again.
The Tribunal also discussed with the applicant that country information reflects that the police in Taiwan are effective and the crime rate is low. Violent crime rates are among the lowest in the world and crime is generally low.[1] Taiwan’s court system is free and fair. Courts are independent, fair and generally free of corruption.[2] Taiwan has a low crime rate and one of the lowest violent crime rates worldwide and police actively seek out and prosecute organised criminals.[3] Police also actively target loan sharks and hundreds have been arrested in recent years.[4] The Tribunal put to the applicant that this country information may reflect that the authorities are willing and able to provide him with protection from loan sharks and criminal gangs should he require it, such that there would not be a real chance of serious harm or a real risk of significant harm to him should he be required to return to Taiwan. The applicant responded that maybe the situation is getting better for him but just in case, he wants to stay safe and stay in Australia.
[1] Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021, 20220531165548
[2] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729
[3] ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021, 20220531165548 and see, e.g., 'Nice Democracy You’ve Got There. Be a Shame If Something Happened to It.', Foreign Policy, 18 June 2018, 20200610123303; 'Prosecutors charge ‘White Wolf,’ other CUPP members with illegal gains', Taipei Times, 14 August 2019, 20190902143851; 'Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019, 20200610130957
[4] Police detain 350 in crackdown on organized crime', Taipei Times, 4 May 2019, 20200610130957; ‘8 gang members arrested for illegal collection of debts in Taipei’, Focus Taiwan, 14 March 2021, 20210519081339; and 'Police tout results of raids on gun, loan operations', Taipei Times, 24 June 2019, 20200501124846

The Tribunal also put to the applicant potentially adverse information under s 424AA, and the applicant submitted that he would like further time to respond. Therefore, on the same day as the hearing, being 21 June 2023, the Tribunal put in writing the same potentially adverse information, and invited the applicant to comment or respond to this information, pursuant to s 424A of the Act, as follows:
The particulars of the information are:
· In your previous hearing with this Tribunal (differently constituted) you stated that the gangsters were after you because your boss had borrowed money and they were trying to locate him through you. You also gave evidence to the previous Tribunal that were never physically assaulted by the gangsters and that you did report them to the authorities. This evidence is relevant to the review because it is materially different to your written reasons that the gangsters were after you because you had information about the gangster’s criminality and intended to expose it and with respect to harm you suffered from them and that you did not report them to the authorities. It is also material different to your evidence to the Tribunal (as presently constituted) that you were assaulted. The consequence of this material different evidence is that it may cause the Tribunal to doubt the credibility of your claim to be of adverse interest to gangsters as you have not been consistent in your evidence as to why they are adversely interested in you, what past harm you suffered from them and whether you reported them to the authorities.
· In your previous hearing with this Tribunal (differently constituted) you gave evidence that you worked in [Company 1]in Taiwan from 2013 to 2015 however official movement records reflect that you were in Australia during the majority of that period. You also gave evidence that the gangsters approached you in Taiwan in 2014 however official movement records reflect that you were in Australia during all of 2014. Movement records also reflect that you returned to Taiwan on 12 April 2015 and returned to Australia on 3 August 2015. The consequence of this evidence with respect to your movement records and the fact of your return to Taiwan is that it may cause the Tribunal to doubt the credibility of your claim to be of adverse interest to gangsters as you have given evidence contradictory to your official movement records and you have also voluntarily returned for a significant period of time to the place from which you claim to fear persecution.
This information is relevant to the review because it may cause the Tribunal to doubt the truthfulness of your evidence and to consider that your claims lack credibility. It may also lead the Tribunal not to accept that you were ever assaulted by a criminal gang, that you did not report a criminal gang to the authorities, and that your boss or anyone else, including yourself was ever of any adverse interest to a criminal gang. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.
If we rely on this information in making our decision, we may not accept that you have a well-founded fear of persecution if you return to Taiwan or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to Taiwan. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.
On 4 July 2023 the applicant responded to the Tribunal’s s 424A letter as follows:
·     The incident happened during the period of about 2009-2011, and I went back to Taiwan in 2014, mainly to get some important items, but also to privately check whether the gangsters are still looking for me, after 3 months, I found that they still have people looking for me , then decided that I must leave Taiwan, as for not going further to report, in fact, a big reason is that the gangsters have a lot of people under them, I I heard that they would do more bad things to people who reported their complaints, so it wasn't that I didn't want to, but I was more worried about my own safety.
·     During my years in Australia, I worked hard during the epidemic, the never-ending isolation and the economic depression. During the epidemic, apart from going out to work and shopping, I basically stayed at home, but I still tried to live my life, and I believe we all worked hard during that time, and I respect and cherish this country, so I hope I can get my rights.
·     The people who died because of the epidemic made me feel like I had to take my life more seriously, and that's what I could do in Australia, and if I went back to Taiwan and faced those things, I would probably be nervous about having a tomorrow.
The Tribunal’s assessment
The Tribunal has serious concerns with respect to the overall credibility of the applicant. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[5] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’, or that it is for the reason claimed. Rather, it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[5] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. 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.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so, it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
Claim to fear harm from gangsters
The Tribunal found the evidence in relation to this claim extremely vague, contradictory, improbable and generally unconvincing. For the following reasons, considered cumulatively, the Tribunal considers the applicant has concocted both his written claim to be of adverse interest to gangsters for reason of his investigations of them and his oral evidence that he is of adverse interest to gangsters because they are trying to locate his old boss.
Firstly, the applicant has given vague and highly contradictory evidence as to how he discovered the claimed gangster’s activities. He stated variously that a gangster had told him, then that an acquaintance had told him and then that he is not really sure if the gangsters were even aware of his knowledge of their activities. When this was questioned, he then stated that they had found out about his knowledge later when he had been filming them and had been discovered. The Tribunal would expect details of how he had come to be in contact with claimed gangsters and how they had become aware of him to be consistently given. As this was not the case, this causes the Tribunal to doubt the credibility of the applicant’s evidence and to doubt that he was ever of adverse interest to the claimed gangsters.
Secondly, the applicant’s evidence with respect to claimed past harm from the gangsters was vague, speculative, contradictory and implausible. He claimed that he was assaulted once only in a car park but did not know if this was actually related to the gangsters and merely speculated it may have been. This contradicted his earlier claim to have been assaulted when caught filming the gangsters, which he implausibly stated was only a mild assault, and this became his explanation as to why he had claimed the car park assault was the only past assault. This also contradicted his evidence to the previously constituted Tribunal that he had never actually been assaulted. The Tribunal would expect that, if a significant event such as actual physical harm to the applicant from gangsters was actually experienced, it would be consistently recounted and that it would be clear such an attack was committed by the gangsters. The fact that this has not been the case causes the Tribunal to doubt that any such harm from the claimed gangsters has ever been experienced by the applicant.
Thirdly, the applicant has also given contradictory and implausible evidence as to whether his parents were assaulted or not. He claimed they were assaulted in his written claim but then stated to the Tribunal that he had in fact prevented any assault on them. When asked how he had achieved this, he gave new evidence that he had engaged the services of other gangsters. When asked why he had not mentioned this prior to the hearing, he implausibly stated that this was because it was a one-off event. The Tribunal would expect that significant events, such as whether physical harm to the applicant’s parents from threatening gangsters was actually experienced or significant efforts to thwart such harm were undertaken, would be consistently recounted. As this has not been the case, the Tribunal doubts that any such harm has ever been experienced or threatened in relation to the applicant’s parents and consequently doubts the applicant’s claims to have experienced past harm from gangsters.
Fourthly, the applicant has provided inconsistent evidence as to whether he sought help from the Taiwanese authorities with respect to the claimed gangsters. In his written claim, he clearly stated that he did not seek assistance from the authorities, however, he has subsequently claimed that he did. When this was put to the applicant, he stated that he cannot remember very well what he did. The Tribunal does not accept this as a plausible explanation for this significant inconsistency. If the applicant had sought help from the authorities, the Tribunal would expect this to be consistently recounted. It is more likely that the applicant has subsequently embellished his story to include seeking help from the police in order to strengthen his claims. This inconsistency causes the Tribunal to further doubt his claim to have ever been of adverse interest to the claimed gangsters.
Fifthly, the applicant has given contradictory evidence as to the claimed timing of his past interactions with the claimed gangsters. As put to him under s 424A, he has not given consistent evidence with respect to the timing of his interactions with the claimed gangsters. In evidence to the previously constituted Tribunal, he claimed to have been approached by the gangsters in 2014, however movement records reflect that he was in Australia for the entirety of 2014. The Tribunal would expect the timing of the applicant’s past interactions with the claimed gangsters would be recounted in a reasonably consistent manner. The fact that this has not been the case causes the Tribunal to further doubt that any such encounters have actually occurred.
Sixthly, the applicant spent some two years in Australia on tourist visas and then returned to Taiwan for several months before returning to Australia, and only then claimed protection. It was put to the applicant that such a lengthy delay in applying for protection, combined with a decision to travel back to the place where the claim to fear persecution originates for several months, may lead the Tribunal to doubt that the applicant genuinely feared persecution. The applicant responded that he was spending the time researching his visa options before deciding to apply for protection. He also made the vague claim that upon his return he had heard the gangsters were still looking for him. However, the Tribunal rejects that assertion on the basis of its preceding credibility concerns with respect to this claim. It is far more likely that his overall highly implausible claim to be of adverse interest to claimed gangsters because they are trying to locate his old boss, whom he lost contact with many years ago, as they think the applicant can help locate him, is entirely made up. The Tribunal considers the applicant’s significant delay in applying for protection, his evidence that he spent several years researching and weighing up whether a protection visa would provide him with a favourable migration outcome versus other visa types, and his past movement history reflect that he has applied for a protection visa as a means of achieving a migration outcome rather than because he has a fear of serious harm from claimed gangsters in Taiwan.
Considering the above cumulative evidence and findings, the Tribunal concludes that the applicant has never come to the adverse attention of gangsters and does not accept his claimed reasons for claiming such adverse attention (being he either sought to expose their activities or record their activities) as credible. The Tribunal does not accept that either he or his parents have ever been harmed or pursued by gangsters.
Having carefully considered the applicant’s claim, the Tribunal does not accept there is a real chance that the applicant will suffer persecution involving serious harm from gangsters, or any other authority, organisation, person or group, for one or more of the five reasons mentioned at s 5J(1)(a), if he is to return to Taiwan, either now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
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).
In considering whether there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Taiwan, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[6]
[6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]
Significant harm is exhaustively defined in s 36(2A): 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.
Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
Considering the applicant’s circumstances and the relevant country information, and having regard to the findings of fact set out above, the Tribunal also finds there are not 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, as set out in s 36(2A), from gangsters or any other authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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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36     Protection visas – criteria provided for by this Act
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(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.
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[2023] AATA 3928

9 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction