1922969 (Refugee)

[2021] AATA 5320

1922969 (Refugee) [2021] AATA 5320 (20 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1922969

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Genevieve Hamilton

DATE:20 December 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 20 December 2021 at 11:26am

CATCHWORDS
REFUGEE – protection visa – Taiwan – political opinion – member of the Guomintang Party (Kuomintang) – employment discrimination – assaulted by police – did not attend hearing – insufficient detail in claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 425, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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

BACKGROUND

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

2. The applicant applied for the visa on 10 December 2018.  The delegate refused to grant the visa on 16 August 2019.  The applicant applied for review on 18 August 2019.

   CRITERIA FOR A PROTECTION VISA

3. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

4. The criteria for a protection visa are relevantly set out in s.36 of the Act.  An applicant must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c).  Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on ‘complementary protection’ grounds, or be a member of the same family unit as such a person.

   Refugee

5. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

6. 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.

7. The criterion in s.5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

8. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

9. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). 

10. A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s.5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

11. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s.5J(6)).

    Complementary Protection

12. If a person is found not to meet the refugee criterion in s.36(2)(a), they may still be a person to whom the Minister is satisfied Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm: s.36(2)(aa).  S.36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

    Mandatory considerations

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

    CLAIMS AND EVIDENCE

14. In his protection visa application the applicant said he was born in Taiwan and travels on a Taiwanese passport.  He did not list any family members and stated that he was not in contact with relatives outside Australia.  He previously lived in Taipei.  He was a Taiwanese citizen by birth, his parents were also Taiwanese citizens.  He came to Australia [in] September 2018, exiting Taoyuan, as a visitor.  He studied [field] at college and was a [occupation] until November 2017, after that he was unemployed and living off his savings.  

15. The applicant said he was seeking protection from Taiwan because he was persecuted by its government.  He took part in the recruitment examination for [Employer 1] in November 2027.  He was refused even though he scored higher than others who were selected.  He learned that it was because he is a member of the Guomintang Party, whereas members of the Democratic Progressive party have priority.  He was angry and argued with the Human Resources staff.  He was taken to the police station and hit in the belly by a policeman.  He was accused of disturbing the social order and stayed in the police station for two days.  Then his boss fired him.  He did not relocate within Taiwan because he did not want to, and would have no friends to help him.  If he returns to Taiwan he will be discriminated against as a member of the Guomintang Party. 

16. The Taiwan Common Claims report produced by the Department of Home Affairs Country of Origin Information Services Section (28 May 2021) concludes based on cited sources that

    Taiwanese democracy is robust and free. Elections are fair and free.  Taiwan’s multiparty
    democracy features vigorous competition between the two major parties, the Democratic Progressive
    Party (DPP) and the Kuomintang (KMT).60 Smaller parties are able to contest elections.61 Democratic
    elections for the national and local government are held every four years.  In January 2020, President Tsai Ing-wen of the DPP was elected to a second four-year term in a landslide victory.

    and that

    Police are effective and the crime rate is low. Violent crime rates are among the lowest in the world

    and crime is generally low. Excessive use of force by police is rare, and lawyers are allowed to

    monitor interrogations to prevent torture…  The Constitution prohibits arbitrary arrest and detention and the US Department of State assesses this principle is generally observed by authorities.

17. On 12 November 2021 the Tribunal wrote to the review applicant advising that to help contain the spread of COVID-19 (coronavirus), the Tribunal was still holding most hearings remotely (by video or telephone link). The letter asked the review applicant to reply within 7 days if they agreed to the hearing proceeding in this manner, and whether they preferred a videoconference or a teleconference. The review applicant did not reply to the letter.

18. The review applicant was invited under s 425 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal on 14 December 2021 at 11 am. To attend the hearing by video, the review applicant was invited to click on a link in the hearing invitation at the specified time. Detailed instructions on how to attend the hearing were included in the invitation. The hearing invitation also gave the review applicant an option to join the hearing by audio only by calling the telephone number and entering the unique conference ID specified in the hearing invitation. The hearing invitation also invited the review applicant to participate in a pre-hearing test of the videoconference link on 6 December. The review applicant did not join in the test of the link.

19. The hearing was scheduled during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing by video. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. 

20. On Sunday 12 December the applicant sent an email advising that he was currently living and working in NSW but would be moving to [location] (Victoria) in the third or fourth week of January.  He asked for the hearing to be deferred until the second week of January.  As the hearing was being conducted by video conference, and the applicant would still be in NSW in the second week of January, the Tribunal was not persuaded that there was any utility in postponing the hearing. 

21. The invitation stated that if the review applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.  The review applicant did not attend the hearing.

    FINDINGS AND REASONS

22. Based on the information in his protection visa application, the Tribunal finds that the applicant is a Taiwanese national.

23. The Tribunal is not required to accept an applicant’s claims uncritically.  The applicant claimed he had been discriminated against in employment, and after an argument was detained and assaulted by the police and dismissed from his existing job.  He stated that this was because he was a member of the Guomintang (Kuomintang).

24. There is insufficient information before the Tribunal regarding the applicant’s political opinion and activities.  The Tribunal is not satisfied that the applicant is a member of the Guomintang.  The Tribunal therefore does not accept that the applicant was discriminated against in employment, or detained and assaulted by the police and dismissed by his employer, in connection with his political opinion.

25. There is insufficient detail before the Tribunal about the applicant’s claims to have been unfairly treated in the selection process for [Employer 1], proceeded to argue with the selectors, and consequently detained and assaulted by the police and lost his job.  The Tribunal is not satisfied that these events occurred. 

26. On the information before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any of the reasons specified in s 5J(1).  The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

27. With regard to the complementary protection provisions, the Tribunal has not accepted the factual basis of the applicant’s claims to fear harm in Taiwan.  The Tribunal is not satisfied that the applicant faces a real risk of significant harm as defined in s 36(2A).  Accordingly, the Tribunal is not satisfied there are substantial grounds to believe that there is real risk that the applicant will suffer significant harm on return to Taiwan.

    CONCLUSION

28. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).

29. 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.

30. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Genevieve Hamilton
    Member