1925250 (Refugee)

1925250 (Refugee) [2022] AATA 1499 (27 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1925250
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Joseph Lindsay
DATE:27 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 April 2022 at 2:55pm

CATCHWORDS
REFUGEE – Protection visa – Taiwan – applicant attended a protest – Taiwanese authorities have no interest in the applicant – fears harm from police – state protection available – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Taiwan, applied for the visa on 8 February 2019.
The applicant appeared before the Tribunal on 22 November 2021 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) (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 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–5LA, 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, 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
In his protection visa application the applicant claimed, in summary, that he left Taiwan to avoid persecution from the Taiwanese government and, in particular, risk of arrest by the Taiwanese police. He claimed that the reason why Taiwanese police wanted to arrest him was because he attended a demonstration against the Taiwanese government in November 2015. He claimed that he and other demonstrators shouted “Ma Ying Jeou does not represent me.” He claimed that the Taiwanese authorities did not stop the demonstration but, that same night, Taiwanese police came to his home and then took him to the police station where he was detained for two days. He claimed that, after he was released, police often came to his home to warn him not to attend any demonstrations against the Taiwanese government. He claimed that in February 2017 he came to Australia on a working holiday visa but that in July 2018 he went back to Taiwan, and it was at that time that Taiwanese police again warned him not to attend any demonstrations against the Taiwanese government. He claimed he was harmed when he was in Taiwan, and he believes that he will be harmed or mistreated if he returned to Taiwan.
In the hearing, the applicant gave the following evidence. He said he was born in Taipei, Taiwan on [date]. He said he grew up in Taipei and went to school in Taipei. He said he did not finish high school. He said he went to work, and then in around 2006 he served in the Taiwanese military for one year. He said that after he completed his military service he worked [in] a [workplace], and he did that job for three years. He said that when he finished this job, he applied for a working holiday visa and came to Australia. When asked why he came to Australia, he said he came to Australia to work.
When asked if he completed his own protection visa application, he said his friend completed his application.
When asked if he was aware of what claims had been made in his protection application, he said he attended a protest against the Taiwanese president when he was in Taiwan in 2015. He said that after the protest, the police came to his house to see if he attended the protest, and then he was brought to the police station, detained and then released. He indicated that nothing else happened to him at that time. He then said that when he went back to Taiwan in July 2018, police came to his house and asked him if he attended a protest. However, he said he told them he did not attend a protest and then they gave him a warning not to attend protests anymore.
When asked why he waited until 2017 to leave Taiwan, he said that he did not have enough money to apply for the working holiday visa, his passport and aeroplane ticket.
When asked if the Taiwanese police ever harmed him, the applicant said the Taiwanese police pressed him against a wall when they arrested him in 2015. Then he said that the police used a baton to “poke” him. However, the applicant then said that the police never bashed him or beat him or hit him with a baton – and the only thing that happened was that the police arrested him.
The Tribunal then spoke with the applicant about country information relevant to Taiwan, as detailed in the delegate’s decision as the applicant had provided to the Tribunal:
Political environment and freedom of assembly
Taiwanese party-politics is a robustly contested affair. Taiwan’s multiparty system features vigorous competition between the two major parties, the Democratic Progressive Party (DPP) and the Kuomintang (KMT). Three peaceful transfers of power between rival parties have occurred since 2000. In January 2016, President Tsai Ing-wen of the DPP was elected to a four-year term. Smaller parties are able to function without interference and have played a significant role in both presidential and legislative contests. There are no reports of political prisoners or detainees.
Protests and demonstrations occur on a regular basis in major cities, particularly during elections, and rarely become violent. They may however serve as sites of confrontation between opposing groups. When (former) President Ma Ying-jeou and the then-ruling Kuomintang (KMT) continued to pursue closer ties with mainland China in 2015, student-led protests that became known as the Sunflower Movement successfully blocked their efforts. The Sunflower Movement began in protest at the way the Cross Strait Service Trade Agreement (CSSTA) with China had been negotiated ‘secretly’, with concerns that the public were not properly informed, that it was not comprehensively reviewed, and that it allowed China more political control over Taiwan.
Freedom of association and assembly are generally unrestricted. The constitution provides for the freedoms of assembly and association and the government generally respects these rights. The right to strike is established by law. Freedom of assembly can however be curtailed, and authorities can lawfully prosecute protestors who fail to obtain the required permit or follow orders to disperse. In May 2016, a draft amendment of the Assembly and Parade Act was proposed to the Legislative Yuan that would abolish the government’s authority to withhold approval for demonstrations; the amendment has not yet passed through Parliament.
The Tribunal put to the applicant that, in consideration of the country information, it may find that the likelihood of the applicant being arrested or detained by Taiwanese police in respect to protest activities was low. In response, the applicant said he did not know what the Taiwanese police would do to him “in private.”
The Tribunal put to the applicant that, given he returned to Taiwan in 2018, that he did not have a genuine fear in returning to Taiwan, and that if the Taiwanese authorities had any genuine interest in him, he would not have been allowed to leave Taiwan in 2017 or in 2018. In response, the applicant said that many people had been involved in the protests and he did not know why the authorities allowed him to leave Taiwan.
The applicant then said he was not afraid of the current President of Taiwan, Tsai Ing-wen, but that he was afraid of the Taiwanese government because many things had been done by people under her.
Analysis and findings
The Tribunal has carefully considered the applicant’s claims and the evidence available to the Tribunal in respect to those claims. The Tribunal accepts that the applicant attended a protest in 2015 in Taiwan, and that after the protest he was arrested and detained by police. The Tribunal accepts that the applicant was spoken to by police on his return to Taiwan in 2018.
However, the Tribunal is strongly persuaded by the country information in respect to Taiwan. There is a significant amount of country information indicating that there is freedom of expression, freedom of assembly and freedom of movement in Taiwan – and people can protest in Taiwan.[1] More recent country information indicates that Taiwanese authorities are tolerant of criticism from civil society groups, which are able to form and operate freely without hindrance.[2] A recent media report stated that Taiwan has been named “the only country in Asia with an open civic space for a fourth consecutive year.”[3] The report, titled People Power Under Attack 2021, said that of 26 countries and territories in Asia, Taiwan remains the only one rated as “open” for the fourth time since 2018.[4]
[1] Freedom House, Freedom in the World 2021 – Taiwan, accessed 23 November 2021.
[2] Taipei Times, 10 December 2021, Taiwan rated Asia’s only open civic space, accessed 16 April 2022.
[3] Ibid, n2.
[4] Ibid, n2.
In addition, more recent media reporting noted that charges against Sunflower movement protesters had been dropped, and the defendants in that matter were exercising their “right of resistance,” or “civil disobedience,” as part of their right to freedom of expression.[5] Another recent report[6] stated:
After an appeal, the Supreme Court in January remanded the cases to the High Court, saying that the defendants were exercising their “right of resistance,” or civil disobedience, as part of their freedom of expression.
[5] Focus Taiwan, 8 October 2021, Charges dropped against Sunflower Movement protesters; case closed, accessed 23 November 2021.
[6] Taipei Times, 9 October 2021, High Court drops verdicts against seven protesters, accessed 23 November 2021.
The relevant country information in the delegate’s decision in respect to law enforcement and the judicial system in Taiwan states:
Law enforcement and judicial system
Operating within a low-crime environment, the National Police Administration (NPA) is effective and well-regarded. The NPA’s main missions are to carry out police and law enforcement in Taiwan, maintain public order, uphold the safety of its citizens and society, prevent hazards and promote the welfare of its citizens. Excessive use of force by police is relatively rare, and attorneys are allowed to monitor interrogations to prevent torture. In 2016, an independent survey showed rising levels of confidence in citizen satisfaction with the police, reaching over 73% in that year. The Constitution prohibits arbitrary arrest and detention and this is generally observed. While Taiwan’s judiciary is generally independent and court rulings generally fair, the system’s impartiality in politically sensitive cases has been questioned. The judicial system provides ample opportunities to seek redress for rights violations, with court trials following due process. The judiciary is independent, with court rulings generally free from political or other undue interference. Judicial corruption is not endemic; nonetheless, throughout her presidential campaign President Tsai has highlighted judicial reform as one of the core policy goals of her administration in order to address popular mistrust in the country’s court system. Some political commentators and academics have publicly questioned the impartiality of judges and prosecutors involved in high profile, politically sensitive cases. Some legal scholars and politicians claimed the justice ministry was not completely independent and conducted politically motivated investigations of politicians. All defendants are presumed innocent until proven guilty and have the right to an attorney and to be present at trial.
Given the country information available to the Tribunal, the Tribunal is satisfied that adequate safeguards are in place in Taiwan to allow the applicant to protest if he chose to, and adequate safeguards are in place in respect to any treatment he may be subjected to by the Taiwanese police if he returned to Taiwan in the foreseeable future. The Tribunal’s findings in this respect are reinforced by more recent country information demonstrating the robust nature of the Taiwanese judicial system where the Taiwanese High Court has recently ordered the Taipei City police to pay total compensation of around NT$1.41 million (US$50,672) to 15 protesters injured during an occupation of the Executive Yuan complex in 2014.[7]
[7] Taipei Times, 28 January 2022, High Court orders Taipei police to pay Executive Yuan protesters NT$1.41m, accessed 16 April 2022.
In addition, the Tribunal is satisfied that the Taiwanese authorities have no interest in the applicant given the country information above, and in consideration of the fact that on more than one occasion he has been allowed to leave Taiwan unhindered by the Taiwanese authorities.
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). 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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
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.
…

[2022] AATA 1499

27 April 2022

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Immigration

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