1908085 (Refugee)

1908085 (Refugee) [2019] AATA 5818 (22 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1908085
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Catherine Carney-Orsborn
DATE:22 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 May 2019 at 3:07pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – criminal record in Australia – conviction for drug smuggling – threats to applicant and family by Triads – credibility – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 on 3 April 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Taiwan (Republic of China), applied for the visa on 28 March 2019. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations as outlined in s36(2)(a) and s36(2)(aa) of the Act.
On 3 April 2019 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant appeared before the Tribunal on 7 May 2019 to give evidence and present arguments. The Tribunal also took evidence from the applicant’s [sibling]. 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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself 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.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia owes protection obligations under s36(2) to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant in his Application for a Protection Visa which was lodged with the Department on 27 March 2019 states that he was born in Taiwan on [date]. He is a citizen of Taiwan. He states he was in the Military Service in the Army in Taiwan for two years from April 1994 to April 1996.
He speaks Mandarin, is a Buddhist and his occupation is [Occupation]. He is currently in [a] Detention Centre. He has been convicted of an offence in Australia.
He has never been married. He claims he has daily contact with relatives in Taiwan via the mobile phone.
He last arrived in Australia [in] March 2013 as a visitor. He states that he departed his home country from [Country 1]. In response to question 58 he states he has never applied to enter any country other than Australia. In response to question 67 he lists the countries he has travelled to as; [Country 1], [Country 2], [Country 3] and [Country 4]. He gives no dates or other requested information in relation to that travel.
He provides no details of any relatives or employment history.
In response to question 73 he states he has been found guilty of a crime. He was convicted in May 2014 of “large importation of prohibited substance” in Australia.
He has been in [a] Detention Centre from [March] 2019.
The summary of his claims
He claims that Triads in his hometown (Taiwan) continue to press him to take full responsibility for the drugs. He claims they will kill him if he does not do so. He claims they are threatening his relatives in Taiwan. He claims he has personal and family safety issues. He claims that his family sent him letters and photos.
He claims he wants to go to [Country 2] as his mother and father live there now and he has a visa which will allow him to enter [Country 2].
He claims that the Triads will kill him if he returns to Taiwan. He claims they are very powerful and have more influence than the police.
Attached to the application were photographs of a garage roller door which appears to have had some paint splashed on it, copies of his passport and four pieces of A4 paper which appear to have Chinese script on them. He also provided a copy of a ‘certificate of diagnosis’ which he claims is in relation to his mother’s [medical condition]. On that form it states that the patient was treated for [medical condition] in 2014. The patient visited outpatient clinic in 2012 and 2014.
The Applicant gave oral evidence to the Tribunal. The applicant’s evidence is summarised below and, where relevant, it is referred to in the Assessment of Claims and Evidence.
The Tribunal explained the refugee and complementary protection criteria to the applicant. The Tribunal explained that it had the Department file and the Tribunal file.
The applicant confirmed that he understood the interpreter. He then handed up a large number of copies of photographs and handwritten letters. He provided documents that he stated were translations of the letters and notes.
He said he recently received these further documents from his [sibling]. He said that he did not have all the evidence and documents for the Department and they made a decision without seeing them all. The Tribunal asked him to go through the documents he had provided. He said that the photographs were of his [sibling]’s [workplace] and show persons causing damage or fighting in an area that could be a [workplace], a car, a garage and letters written on paper and some translations of the letters.
He said that he has been in gaol in Australia for [number] years. He claims that gangsters (Triads) want him to repay the money he lost when the drugs were confiscated by the Australian authorities. When asked to explain he stated words to the effect that as he brought the drugs into Australia and was caught by the police and the drugs belong to the gangsters and he has to repay them. The Tribunal asked how he could be expected to repay them if he has been in prison for [number] years. He said that he has already suffered the legal punishment and they have now asked for him to repay them. He claims they came to his house to harass him and make threats. He claims he wants to go to [Country 2] and be re-united with his family who now live there.
He claims that his mother has [medical condition] and they constantly harass her. He claims that due to this harassment his mother’s health is suffering and she went with his [sibling] to live in [Country 2].
He said his return to [Country 2] was not approved as his nationality in his passport is Taiwan. He said he has a visa for [Country 2] in his passport. The Tribunal asked who would not approve it. He said Australian authorities. They told him to go first to Taiwan and then on to [Country 3] and [Country 2].
He claims that because he has been in gaol in Australia they (the gangs) will track him down in Taiwan. He claims that it was due to this intimidation that his [sibling] took his mother to [Country 2] to live.
He said they have damaged his [sibling]’s car, thrown red paint on [her/his] garage and they sent threatening notes.
The Tribunal asked if the gangs would harass him in Australia. He claimed that he received some further documents in the last few days.
The Tribunal asked when his [sibling] and mother went to [Country 2] to live. He said one to two years ago they left to live in [Country 2] as they could not bear it.
The applicant claimed that the Triads know everything about him. He claims the gangs have contacts in Australia and they know that he is out of prison and in detention.
The Tribunal asked the applicant if he had read and considered the Department’s decision. He responded that he had however they had made the decision before they had read all the evidence he provided.
He said some of the information he just received last week. He provided a copy of an envelope which is an express mail service air post from Taiwan. It is dated 23 January 2019.
He said his [sibling] just sent it last week from Taiwan.
The Tribunal then reminded him that he said his [sibling] lived in [Country 2] with his mother. He then stated that they do not have residency and have to go back to Taiwan every few months.
He said his father is in Taiwan. He claims that the gangs do not know his father’s information. He said it could be that his father is not harassed as he is male and in his [decade]. He said his parents divorced more than 20 years ago.
He states that he has previously been in [Country 4], [Country 1] and [Country 2].
The Tribunal showed the applicant the application for a protection visa that he had lodged with the Department and asked why he had not listed any family members in that document.
He replied that he did not know their current addresses so he did not list them in the form.
He then changed his evidence to state words to the effect that his friend in detention had helped him fill out the form. He said that his friend speaks Cantonese and he speaks Mandarin and because his friend did not understand him he left portions of the application for protection blank.
The Tribunal indicated it found it hard to understand why he would use someone he could not understand to help him fill out the application for protection form.
He reiterated that when his friend could not understand him the friend left portions blank. He then expanded to say that his friend would ask him the question on the form and he would answer him and then his friend would write down the answer.
He said that his friend is still in detention.
The applicant then stated words to the effect that the written portion of the application for protection was correct. The Tribunal again asked him to expand. He stated the written part was correct as another friend who was no longer in detention translated what he wrote in Chinese into English. The Tribunal asked how this was managed. He responded that he called that friend and told him what he wanted to write in Chinese. He claims he sent it to him in Chinese and his friend put it in English and then the friend in detention wrote it down in the application for protection.
The Tribunal again clarified that he was certain what was in the written section was correct. He said it was. The Tribunal then pointed out that in the written section he stated that both his mother and father were living in [Country 2]. Throughout the hearing he has stated that his father remained in Taiwan.
He then changed his evidence to state that his father also has [medical condition] and is going back and forth between [Country 2] and Taiwan. He said this is because there is no health care in [Country 2] so he returns to Taiwan to receive treatment. The Tribunal pointed out that in his application for protection he wanted to be reunited with his parents in [Country 2]. He said that his father is going back and forth between the two places but is not living with his [sibling] and mother and has a new family.
The Tribunal asked when his mother had treatment. He gave a vague answer that it was three or four years ago. He claims she is still getting treatment and needs to go back to Taiwan.
The Tribunal then asked why his family could hide in [Country 2] if they were constantly coming back and forth. The Tribunal put to him that the Triads have contacts in Asia and Australia and could get to him. He agreed they have contacts in Australia and are widespread.
The applicant said the Triads know everything he is doing even in Australia. He said he knows this because they wrote to him not long ago. He then referred to untranslated writing on A4 pieces of paper. The interpreter read the letters out. The letters included threats to him indicating they knew he was in Australia and his family was not safe. These included threats such as “we know you are out of gaol prepare to die” “it doesn’t matter where you move to I will find this out”, “your whereabouts under our control and we are waiting for you and fully prepared, you and your family will have to pay the cost using your life” and other threats.
The Tribunal put to him that they all look very similar and asked if they were written by the same person. He replied they were all different.
The Tribunal put to the applicant the country information that Taiwan is a democratic state with strong protections and a strong police force. The Tribunal referred to the country information before it.
He replied that the Tribunal did not understand Taiwan.
The Tribunal asked why he had said he wanted to go to [Country 2] in his written application and in evidence he referred to [Country 3] when he has agreed the Triads have a presence there. He replied he would take his mother to a remote area of [Country 2]. He then stated he wanted to stay in Australia. He said things are better in Australia and safer.
The applicant then asked the Tribunal to call his [sibling]. The Tribunal asked his [sibling]’s date of birth. He replied he did not know it. He provided a phone number. The Tribunal called the number which was a number in Taiwan. A [person] answered the phone.
The Tribunal took evidence from a [person] who stated [s/he] was the applicant’s [sibling].
[She/he] said that [s/he] is currently in hiding in Taiwan. [She/He] previously went to hide in [Country 2] with [her/his] mother
The Tribunal asked where [her/his] father is. [She/He] responded he is in another place. [She/He] then clarified that the father was in Taiwan not [Country 2].
[She/He] said [s/he] could not work in [Country 2] so [s/he] returned to Taiwan. [She/He] said [s/he] was constantly moving around and in fear. [She/He] said [her/his] mother and father could not live together as it was too risky. When queried [s/he] stated that [her/his] father and mother were divorced however [s/he] was in close contact with him.
[She/He] said [s/he] was in Australia when the incident with [her/his] brother happened 6 or 7 years ago.
[She/He] said [s/he] did not intend to go back to [Country 2] as [s/he] could not get a job. [She/He] said [s/he] moved many times to different places. [She/He] said people were looking for [her/his] brother and come after [her/him] and [her/his] mother. [She/He] said this caused [her/him] great fear.
The Tribunal asked why they were after [her/his] brother. [She/He] said it was not explained clearly to [her/him]. [She/He] then stated [s/he] suffered from depression.
After the hearing a written letter was provided to the Tribunal. The letter was untranslated. The Tribunal organised for the letter to be translated and read to the Tribunal member.
The letter stated that the [sibling] and mother were living in fear. They are receiving threats in relation to their brother. The [sibling] is suffering from depression and hallucinations including voices to kill [her/his] brother. The applicant provided a certificate from a hospital in Taiwan stating that [her/his] sister had been examined a on the 10 May 2019 and suffers from depression.
INDEPENDENT COUNTRY INFORMATION
US Department of State Human Rights Report for Taiwan 2018
TAIWAN 2018 HUMAN RIGHTS REPORT
EXECUTIVE SUMMARY
Taiwan is a democracy governed by a president and a parliament selected in multiparty elections. In 2016, voters elected President Tsai Ing-wen of the Democratic Progressive Party to a four-year term in an election considered free and fair.
Civilian authorities maintained effective control over the security forces. There were no reports of egregious human rights abuses.
Authorities enforced laws prohibiting human rights abuses and prosecuted officials who committed them. There were no reports of impunity.
Arbitrary Arrest or Detention
The constitution and relevant laws prohibit arbitrary arrest and detention, and provide for the right of defendants to challenge the lawfulness of their detention in court, and the government generally observed these requirements.
Role of the Police and Security Apparatus
The National Police Administration (NPA) of the Ministry of the Interior has administrative jurisdiction over all police units. Central authorities appoint city and county police commissioners. Civilian authorities maintained effective control over the NPA, and those authorities had effective mechanisms to investigate and punish abuse and corruption. There were no reports of impunity involving the security forces during the year.
To address injustices committed during Taiwan’s authoritarian era, the ruling party passed the Act on Promoting Transitional Justice in December 2017. The law defines the authoritarian era as running from August 1945 to November 1992.
Corruption and Lack of Transparency in Government
The law provides criminal penalties for corruption by officials, and authorities generally implemented the law effectively. There were reports of official corruption during the year. As of June, 20 ranking officials, 53 mid-level, 73 low-level, and 11 elected people’s deputies had been indicted for corruption.
Corruption: The Ministry of Justice and its subordinate Agency against Corruption are in charge of combating official corruption. The ministry received sufficient resources and collaborated with civil society within the scope of the law. Some legal scholars and politicians said the justice ministry was insufficiently independent and conducted politically motivated investigations of politicians. The Control Yuan is responsible for impeachment of officials in cases of wrongdoing.
Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Abuses of Human Rights
A variety of domestic and international human rights groups generally operated without restriction, investigating and publishing their findings on human rights cases. Authorities were generally cooperative and responsive to their views
ASSESSMENT OF CLAIMS AND EVIDENCE

The applicant claims to be a citizen of Taiwan. He has a passport issued by Taiwan. He claims he was born in Taiwan. The Tribunal has assessed his claims against Taiwan as his country of nationality for the purposes of the Convention and his receiving country for the purposes of s.36(2)(aa).
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.^[1] If the Tribunal 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.[2] 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.[3]
The Tribunal has issued guidelines on the assessment of credibility in protection visa cases, which state, in part:
The tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims.
[1] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).
[2] MIMA v Rajalingam (1999) 93 FCR 220
[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
Ultimately, after considering all the evidence, the Tribunal is not satisfied that key elements of the applicant’s claims are credible. The reasons why the Tribunal has reached this conclusion are set out in detail below.
The applicant’s oral evidence was vague, improbable and unsupported by the available country information. When discrepancies were put to him in relation to his claim he changed his evidence and the facts he was claiming. He claimed he spoke to his family daily. When he was asked why his family, whom he claimed were being harassed and threatened by Triads were not listed on his application for protection, which he lodged with the Department, he gave the improbable response that this was because he asked a friend who did not speak Mandarin to complete the form for him. When queried as to why he would choose someone he could not communicate with to complete his form his explanation became more convoluted and confusing.
He stated that the written part of his claim was correct as he claims he had gone through a different process with another friend who was not in detention that involved him telling him the story and him sending it back in English. The Tribunal queried why in his written claims he said his mother and father were living in [Country 2] to escape the harassment of the Triads however at hearing he stated at first he did not know where his father was, then that his father was in Taiwan, then his father had [medical condition] and moved between Taiwan and [Country 2] and later his father had a new family. In his written claims he said he was in contact with relatives on a daily basis.
The Tribunal found it difficult to understand why he stated he wanted to return to [Country 2] when he feared the Triads and agreed they would have considerable influence there. He agreed the Triads had contacts and influence there and even in Australia. His response was that he would go to a remote area in [Country 2] and then later in the hearing that Australia was safer. He stated that he received recent threats and produced A4 paper with Chinese writing on it. He then stated his [sibling] sent it to him a few days ago however the date on the air express mail envelope showed January 2019.
When the Tribunal put to him independent country information which shows that Taiwan is a functioning democracy with an effective police force and any corruption is investigated he simply replied Australia is safer or that the Tribunal does not understand. The Tribunal prefers the independent country information to the applicant’s assertions that he will be in danger.
The applicant was given the opportunity to expand on his fear however was not able to do so in any convincing or persuasive manner. He claimed that the Triads knew all about him in Australia however gave no explanation of why he felt safer in Australia other than Taiwan. In his written claims he wrote “the triad is very powerful and has more influence than the police”. He could not convincingly explain why he had also stated he wanted to return to live in [Country 3] or [Country 2]. When pressed on that issue he simply replied he would take his mother to a remote area of [Country 2]. His position shifted over the course of the hearing and at the end he stated that he wanted to stay in Australia.
The Tribunal has considered the photographs he provided. They are photographs of a garage door that has had paint splashed on it. Further photographs show a car parked which no other distinguishing features and photographs of a group of men in a room where furniture has been overturned. There is nothing to connect these photographs to the applicant or his family. He claimed that the photographs show his [sibling]’s [workplace] being attacked. The Tribunal also took evidence from the applicant’s [sibling]. The applicant’s [sibling] was supportive of the applicant ([her/his] brother) in that [s/he] said [s/he] was in fear and constantly moving around. [She/He] said [s/he] took [her/his] mother to [Country 2] and returned to Taiwan. A further written statement, which the applicant claimed was from his [sibling], was provided which reiterated the applicant’s claims. When queried why they would return to Taiwan if they are in such fear and the mother’s health is being compromised the applicant responded that his [sibling] could not find work in [Country 2]. The Tribunal is not satisfied that this is a satisfactory or convincing response as if the [sibling] and mother are moving around constantly the [sibling] could not hold down a job. They claim they needed to return for the mother’s treatment however the evidence provided indicates the mother’s intensive treatment stopped in 2014. If she was on medication this could be obtained in [Country 2].
The Tribunal accepts that the applicant’s mother had a diagnosis of [medical condition] in 2013 and received treatment in 2014. The Tribunal accepts that she could still be on medication. The Tribunal does not accept that his father also has [medical condition] as this evidence was only introduced by the applicant at the hearing when queried as to why he gave inconsistent evidence of where his father was and why his father was not at risk. No medical evidence was provided.
The Tribunal accepts that the applicant’s [sibling] wants to assist [her/his] brother with his stated wish to stay in Australia however finds that evidence has been fabricated in the hope of assisting [her/his] brother obtaining a protection visa.
For the reasons set out above, the Tribunal finds the applicant is not a credible witness and rejects his claims that he will be harmed if he returns to Taiwan in their entirety. Given the applicant’s criminal history he may have links with Triads or gangs however if he had a well-founded or genuine fear he would not have stated he wants to return to live in [Country 2]. The Tribunal finds that if his family were likely to suffer serious harm they would not have returned to Taiwan to live. His evidence shifted over the course of the hearing from his family being in [Country 2] to their moving between Taiwan and [Country 2] to their living in Taiwan.
The Tribunal does not accept that if his family were in any genuine fear they would have returned to live in Taiwan.
When it was put to the applicant that the Triads have contacts and links in Australia and Asia he agreed. He said they were threatening him in Australia however he could not explain in any convincing way why, given the country information on Taiwan, he would be safer in Australia or [Country 2] than Taiwan.
The Tribunal does not accept that there is a real chance that he would suffer serious harm or significant harm at the hands of the Triads if he were to return to Taiwan.
The Tribunal accepts the country information above that Taiwan is a functioning democracy and has safe guards in place to protect its citizens. The Tribunal finds that the protection available is durable and, in the case of protection by Taiwan, the protection consists of an appropriate criminal law, an effective police force and an impartial judicial system.
No persuasive or convincing evidence was provided on why the applicant’s family had not sought assistance from the authorities in Taiwan particularly given the large amount of evidence they claim to have which is identifying the alleged assailants.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Taiwan for reasons of his race, religion, nationality, membership of a particular social group or his political opinion if he returns to Taiwan now or in the reasonably foreseeable future.
Because the Tribunal has found that the applicant is not a refugee, it has considered whether he is entitled to complementary protection. For the reasons set out above, the Tribunal finds that there is no real risk that the applicant will suffer harm of any type from Triads or any other person or group if he returns to Taiwan.
Having regard to its findings of fact, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Taiwan, there is a real risk he will suffer significant harm at the hands of Triads/gangs or for any other reason if he is removed from Australia to Taiwan. Specifically, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of his life, or that the death penalty will be carried out on him, or that he will be subjected to torture, or cruel of inhuman treatment or punishment, or degrading treatment or punishment.Therefore, the Tribunal is not satisfied that Australia has protection obligations to the applicant because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia, there is a real risk he will suffer significant harm for the purposes of s 36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2)
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Catherine Carney-Orsborn
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 5818

22 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction