1924397 (Refugee)

[2022] AATA 658

1924397 (Refugee) [2022] AATA 658 (24 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1924397

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:L. Symons

DATE:24 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 24 January 2022 at 4:49pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – debt owed to a money lender – failure to attend scheduled hearing – unsubstantiated claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Taiwan, arrived in Australia [in] September 2018 as the holder of an Electronic Travel Authority (Tourist) (UD-601) visa.

3. The applicant applied to the Department of Immigration (the Department) for a Protection visa on 12 December 2018. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 1 September 2019, he applied to the Tribunal for a review of that decision.

4. On 21 September 2021, the Tribunal wrote to the applicant by email and advised him that the Tribunal was not conducting face to face hearings due to the Covid pandemic, informed him that he may be invited to attend a hearing by video or telephone and requested that he provide the Tribunal with his telephone number. He did not respond to that request within 7 days as requested. The Tribunal wrote to him again on 22 October 2021 and informed him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The Tribunal invited him to attend a telephone hearing on 10 November 2021 by calling a telephone number provided. He responded to that hearing invitation on 30 October 2021. 

5. The Tribunal wrote to the applicant on 1 November 2021 advising him that the hearing on 10 November 2021 would be rescheduled to a video hearing and that he would be contacted shortly in relation to the new hearing date and time. A Tribunal officer spoke to him on 10 November 2021 and confirmed with him that he would receive another hearing invitation with the new hearing date and time and should respond to that hearing invitation. The Tribunal wrote to him again on 20 December 2021 and invited him to a new hearing on 20 January 2022 at 9.30am. This invitation was sent to him by email to the email address he provided the Tribunal. He was requested to respond to the hearing invitation within 7 days of receipt and failed to do so.

6. The Tribunal wrote to the applicant on 11 January 2022 and invited him to a test session on 14 January 2022 to ensure that he had no difficulties participating in the hearing electronically. He did not respond to this invitation or attend the test session. He did not attend the hearing on 20 January 2022 at 9.30am. He did not contact the Tribunal to explain his non-attendance or to seek a postponement of the hearing.  

7. The applicant contacted the Tribunal by telephone on 21 January 2022 and followed that up with an email on 21 January 2022 requesting a further hearing on the basis that he did not check his emails every day, his English is not good and he did not know about the hearing date until he contacted the Tribunal on 21 January 2022. The Tribunal is not satisfied that this is a reasonable explanation for his non-attendance at the hearing for a number of reasons. Firstly, he provided the Tribunal with his email address for the purpose of communicating with him. The Tribunal would therefore expect him to monitor his emails regularly for correspondence from the Tribunal whilst he had an application for review pending before the Tribunal.

8. Secondly, the applicant communicated with the Department by email. He was notified of the refusal of his application for a Protection visa by email and was able to receive, read and understand the email, or have someone explain it to him, and lodge his application for review with the Tribunal within the prescribed time. Thirdly, the Tribunal wrote to him by email on 22 October 2021, invited him to a telephone hearing on 10 November 2021 and he responded to that hearing invitation. He was therefore able to receive, read and understand this email, or obtain assistance from someone to do so, and respond to it.

9. Fourthly, the Tribunal wrote to the applicant on 1 November 2021 and advised him that his hearing on 10 November 2021 would be rescheduled to a video hearing and he would be notified shortly of the new hearing date and time. He was therefore on notice to check his emails regularly to ensure that he was aware of the new hearing date and time. Fifthly, a Tribunal officer spoke to him personally over the telephone on 10 November 2021 and reinforced with him that he will receive a hearing invitation for a new hearing and that he should respond to that hearing invitation. He was therefore on notice again to check his emails regularly to ensure that he was aware of the new hearing date and time.

10. Sixthly, the Tribunal wrote to the applicant by email on 20 December 2021 and invited him to a video hearing on 20 January 2022. He therefore had a month’s notice of the hearing. Even if he did not check his emails every day as claimed, the Tribunal does not accept that he did not check his emails for a month in circumstances where he had been told in writing and verbally that he would be receiving a hearing invitation shortly. Seventhly, the Tribunal does not accept that it is a coincidence that he contacted the Tribunal on the day after the hearing having failed to respond to the hearing invitation, failed to respond to an invitation to a test session prior to the hearing, failed to attend the test session and failed to attend the hearing.  

11. In view of the above, the Tribunal is satisfied that the applicant has been properly notified  of the hearing date. The Tribunal is not satisfied that he was unaware of the hearing date on 20 January 2022 and does not accept his explanation for his non-attendance at the hearing. In the circumstances, the Tribunal is not prepared to offer him another hearing as requested and will proceed to make a decision on the review.

12. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

    CRITERIA FOR A PROTECTION VISA

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

14. 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.

15. 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).

16. 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.

17. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

19. The applicant’s claims in his application for Protection visa are summarised as follows:

    ·He was born on [date] at Hsinchu City in Taiwan.

    ·He left Taiwan because he was unable to settle a large debt owed to a money lender.

    ·His siblings and close family members were harmed by gangsters after he was late to pay his agreed monthly repayments to the money lender. This had a huge impact on him and ruined his life and his family relationships.

    ·He comes from a very poor background and his family were unable to assist him financially.

    ·The money lender came to his house and threatened his family because he could not repay the debt.

    ·He could not seek help from the Taiwanese authorities because he borrowed from an illegal money lender.

    ·He did not try to move to another part of Taiwan because the money lender will find him.

    ·If he returns to Taiwan, he thinks that the money lender and gangsters will continue to use violence against him and his family.

    ·The Taiwanese authorities will not protect him because he borrowed from an illegal money lender.

20. The applicant provided the Department with a copy of his Republic of China (Taiwan) passport issued [in] 2018.

21. The applicant was not invited to attend an interview with the Department. His application for a Protection visa was refused on 29 August 2019.

22. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 29 August 2019. He has not filed any other evidence with the Tribunal.

    Receiving Country

23. The applicant claims to be a citizen of Taiwan and has provided a copy of the biodata page of his Republic of China (Taiwan) passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Taiwan. The Tribunal finds that Taiwan is his receiving country for the purpose of assessing his claims for protection under the refugee criteria and under the complementary protection criteria.

    Third Country Protection

24. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of claims

25. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself/herself in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision maker is not required to make the applicant's case for him/her. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

26. In this case, the applicant's claims are made in the most general terms and they are unsubstantiated. He has not filed any written evidence with the Department or the Tribunal to support his claims. As he did not attend the hearing on 20 January 2022, the Tribunal was unable to obtain further details of his claims and to test their veracity. If the applicant had attended the hearing, the Tribunal would have sought additional information about the money he borrowed including why he borrowed the money, when he borrowed it, how much he borrowed, who he borrowed it from, the terms and conditions of the loan, whether he repaid any of the money when he was in Taiwan or since coming to Australia and how much, if any, is now outstanding.

27. If the applicant had attended the hearing, the Tribunal would have sought clarification from him in relation to his claims that his family was unable to assist him financially, his family was threatened by the money lender, his siblings and close family members were harmed by gangsters and the money lender and gangsters will continue to use violence against his family if he returns to Taiwan in view of the fact that he did not disclose that he had any family members in Taiwan in his application for a Protection visa. The Tribunal would have ascertained why he believed that the money lender would find him if he moved to another part of Taiwan.

28. If the applicant had attended the hearing, the Tribunal would have found out from him why he could not seek help from the Taiwanese authorities because he borrowed from an illegal money lender and why he believes that the Taiwanese authorities will not protect him because he borrowed from an illegal money lender. The Tribunal would have discussed relevant country information with him. The Tribunal would have also discussed with him what grounds under the refugee criteria he was making these claims.   

29. On the limited evidence before it, the Tribunal is not satisfied that the applicant borrowed money from a money lender or an illegal money lender or gangsters in Taiwan. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal is not satisfied that he is of adverse interest to a money lender or an illegal money lender or to gangsters. The Tribunal is not satisfied that he left Taiwan for the reasons claimed or that he fears returning to Taiwan for the reasons claimed.

30. On the evidence before it, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant, for the reasons claimed, if he returns to Taiwan now or in the reasonably foreseeable future. 

    Does Australia have protection obligations to the applicant under the refugee criterion?

31. On the limited evidence before it and in view of the above findings, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any reason set out in s.5J(1)(a) of the Act, that there is a real chance that he would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of Taiwan. Therefore, he does not meet the definition of refugee as set out in s.5H of the Act. 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) of the Act.

    Does Australia have protection obligations to the applicant under the complementary protection criterion?

32. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

33. On the limited evidence before it and in view of the above findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

    CONCLUSION

34. 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) of the Act.

35. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

36. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons

Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…