2007915 (Refugee) - [2024] ARTA 557

2007915 (REFUGEE) [2024] ARTA 557 (20 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2007915

Tribunal:General Member M Simmons
Date:20 November 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 20 November 2024 at 12:38pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – Federal Circuit Court remittal – attack on business – threats from criminal gang – physical assault – fear of killing – blackmail by police – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
BMY18 v Minister for Home Affairs [2019] FCAFC 189
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
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 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a national of Taiwan, applied for the visa on 27 April 2016.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1)Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Court remittal
The Tribunal, differently constituted, found in November 2017 that it lacked jurisdiction in respect of the application for review. That decision was set aside by the Federal Circuit Court in April 2020. The matter is now before the Tribunal pursuant to an order of the Court, concluding the previous Tribunal decision was affected by jurisdictional error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 and BMY18 v Minister for Home Affairs [2019] FCAFC 189.
DECISION WITHOUT A HEARING
On 5 November 2024, the applicant was invited to attend a hearing scheduled for 21 November 2024. The applicant declined the hearing invitation by completing, signing and returning a hearing response notice on 13 November 2024. In that notice, when asked “Will you take part in the hearing scheduled for 21 November 2024” the applicant relevantly ticked the response which reads: “No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing”.
I wrote to the applicant on 15 November 2024 confirming that the Tribunal scheduled a hearing because the available information was not sufficient to establish the protection claims and informed him that without further information in support of his case, a favourable decision cannot be made. On this basis, I invited him to clarify whether he wished to proceed with the scheduled hearing or not, and/or to provide any further information in support of his claims, noting that failure to do so will result in the decision to refuse the visa being affirmed. I asked for his response by 19 November 2024. He did not provide a response.
On 20 November 2024 I informed the applicant that their hearing has been cancelled, that the Tribunal will proceed to determine this matter on the information before it, and that they will be provided with a decision in due course.
Section 106 of the Administrative Review Tribunal Act 2024 (ART Act) sets out the circumstances in which the Tribunal may reach a decision without a hearing. These include where an applicant requests the Tribunal to make its decision without holding a hearing, per s 106(3)(b)(ii) ART Act. I am satisfied, given the applicant’s clear response to the hearing invitation, that he requests the Tribunal to make its decision without a hearing.
Following a s 106(3)(b)(ii) request, to proceed in making a decision without a hearing it must appear to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding: s 106(3)(c) ART Act
The issues to be determined in this proceeding are:
·The applicant’s identity, nationality and ‘receiving country’.
·Whether the applicant is a refugee per s 5H of the Act and is owed protection obligations per s 36(2)(a) of the Act.
·Whether there are 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 the applicant will suffer significant harm, meaning they are owed protection obligations per s 36(2)(aa) of the Act.
On the available information, it appears the issues for determination in this proceeding can be adequately determined in the absence of the parties to the proceeding. Before me is the Department’s file which includes a copy of the applicant’s protection visa application, protection claims statement, passport, and the delegate’s decision amongst other information. On this material and without a hearing, I am satisfied findings can be made in respect of the applicant’s identity, nationality and receiving country, as well as whether they are owed protection obligations under ss 36(2)(a) and 36(2)(aa) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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.
Protection claims
The applicant’s protection claims as raised in his visa application can be summarised as follows:
·The applicant was born in [Village 1], [County 1], Taiwan.
·He fled Taiwan [in] March 2016 as he was was severely persecuted by the local authorities.
·In 2011, he opened a local [shop]. Gangsters from the local mafia would get drunk and come to the shop from time to time. They stole goods and threatened and intimidated the applicant. This scared customers away and adversely affected the applicant’s finances.
·The applicant did not initially report the matter to the police as there was close connection between the police and the gangsters.
·[In] August 2014, the applicant made a police report and two police officers went to his shop and told the applicant that an investigation would be carried out.
·A month or so later, the officers returned. They blackmailed the applicant and stole goods. The gangsters also continued their harassment.
·At the end of October, the applicant gave gifts and money to the police and asked them to withdraw the investigation.
·The gangsters returned to the shop at 9:00am on [a day in] November 2015. They beat the applicant and told him he would pay for what he did. They vandalised and looted the shop. The applicant was hospitalised for two weeks.
·He was then threatened with death if he made further police reports or re-opened the shop.
·The applicant suffered a great deal mentally and was afraid he would be beaten to death. The gangsters enjoy persecuting the Chinese and he could not get rid of them.
·The applicant’s parents suggested he flee.
REASONS AND FINDINGS
Identity, nationality and receiving country
The applicant claims he is a citizen of the Republic of China (Taiwan). He has provided a copy of a Taiwanese passport with his visa application. The details in that document support his claimed identity and nationality, and I do not have any concerns as to the authenticity of this document.
I accept that the applicant is who he claims to be, and that he is a national of Taiwan. Taiwan is the receiving country for the purpose of this assessment.
Gangsters
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The applicant claims that he was beaten by local gangsters and his business was destroyed, and that when he reported this to the police, two local police officers blackmailed him and stole goods. He has provided brief details on his reasons for fearing harm on return to Taiwan in the reasonably foreseeable future. These claims were raised in 2016 and he has not subsequently sought to explain why he believe he continues to face a future chance or risk of harm.
The applicant has not sought to provide elaboration or corroboration on his claims, despite being afforded various opportunities to do so. The delegate’s decision record states that the applicant failed to attend an interview to discuss his protection claims scheduled for 1:30pm on 4 July 2017, and that he was properly notified of the scheduled interview by email on 22 June 2017. The applicant submitted a copy of the Department’s interview invitation to the Tribunal, indicating he did receive it. There is no suggestion the applicant subsequently contacted the Department to explain his non-attendance or to seek to reschedule the interview.
When the Tribunal acknowledged receipt of the review application in August 2017, and again in May 2020 following the court remittal, the applicant was invited to provide any relevant information he wished to rely on but failed to do so. Similarly, when he was sent a hearing invitation in November 2024 he was asked to submit any supporting material he wished to rely on but did not do so.
The applicant declined the hearing invitation by email on 13 November 2024. I wrote to him on 15 November 2024 confirming that the Tribunal scheduled a hearing because the available information was not sufficient to establish the protection claims and informed him that without further information in support of his case, a favourable decision cannot be made. On this basis, I invited him to clarify whether he wished to proceed with the scheduled hearing or not, and/or to provide any further information in support of his claims, noting that failure to do so will result in the decision to refuse the visa being affirmed. I asked for his response by 19 November 2024. He did not provide a response.
Does the applicant satisfy the refugee criterion for protection?
The applicant has not provided any further information or elaboration in support of his claims since lodging the visa application in 2016, despite being afforded a number of opportunities to do so. Given the paucity of detail before me, I reject the applicant’s protection claims in their entirety. I am not satisfied, on the evidence before me, that the applicant owned a shop, or that he was ever targeted or harassed by gangs, or blackmailed by police, while carrying on such a business. I am not satisfied that he was ever harmed or threatened for any reason while in Taiwan. I am not satisfied that he was ever of any adverse interest to any group or person in Taiwan for any reason previously, or that he may become so in the reasonably foreseeable future.
On the evidence before me I am not satisfied the applicant faces a real chance of serious harm, or any harm, in the reasonably foreseeable future for any reason were he to return to Taiwan. The applicant does not have a well-founded fear of persecution for any s.5J(1)(a) reason.
The applicant is not a refugee per s.5H and is not owed protection obligations per s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
When considering the future prospect of harm for an applicant, the ‘real risk’ and ‘real chance’ elements involve the same standard.[1] For the reasons set out above the applicant also does not face a real risk of any harm including treatment amounting to significant harm were he to return to Taiwan.
[1] MIAC v SZQRB (2013) 210 FCR 505.
I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country of Taiwan, there is a real risk he will suffer significant harm.
The applicant is not owed protection obligations per s 36(2)(aa).
Conclusions
For the reasons given above I am not satisfied the applicant is a person in respect of whom Australia has protection obligations. The applicant do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.
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. It follows he is also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the 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.
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.
…