2011474 (Refugee)

2011474 (Refugee) [2022] AATA 1443 (12 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2011474
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Meena Sripathy
DATE:12 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 April 2022 at 2:51pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – political opinion – membership of party supporting unification of China – interrogation and monitoring by police – harassment at school and work – low-level membership and participation in one parade – departure on own passport and three voluntary returns without harm – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1), 5J(1)(a), (5), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BZAAH v MIAC (2013) 213 FCR 261
MIEA v Guo (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 dependants.
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 17 June 2020 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 citizen of Taiwan applied for the visa on 5 February 2020. The delegate refused to grant the visa on the basis of not being satisfied there is a real chance the applicant would be subject to persecution due to his political opinion or any other reason specified in s5J(1)(a) or a real risk he would face significant harm.
The applicant appeared before the Tribunal on 7 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review however his representative did not attend the hearing. The Tribunal exercised its discretion to hold the hearing remotely given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the matter and the individual circumstances of the applicant. 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 conducted remotely. The applicant participated in a video hearing using the MS Teams platform. The interpreter was present by telephone and all parties confirmed that they could clearly hear each other. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The issues in this case are whether there is a real chance, if the applicant returns to Taiwan, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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-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.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his application form the following information is provided. The applicant was born in [Taiwan] in [Year] and states his citizenship and nationality as Taiwanese since birth. He indicates his relationship status in the application as ‘never married’. He provides details of a grandfather in Taiwan and no other family members. He states he last arrived in Australia in February 2017 on a student visa. He indicates he travelled to [another country] for one week in March 2018 for tourism purposes. He provided details of employment from 2011 to 2014 as [an Occupation 1] for a [company] in Taiwan and no other employment. He studied to middle school level up to [year].
He provided his claims for protection in a Statement attached to the application in which he provided the following information:
·He fears return to Taiwan because of his membership of the China Unification Promotion Party. As a member, he supports unification of Taiwan with China and the policy of One China and opposes Taiwan’s independence.
·As the current Taiwan government seeks to maintain the current status, it is opposed to unification and treats the members of the China unification Promotion Party as their enemy.
·He took part in a parade in Taipei City to demonstrate he was on the side of PRC.
·He was often called and interrogated by the police and his actions were monitored and under surveillance. He was suspected to be a spy for the CCP and collecting information and documents for them. He was unable to work and live his life.
·This caused great pressure on him mentally and emotionally and he came to Australia. He is scared to return and confront the pressure from different sides. He hopes to live a normal life in Australia.
The applicant provided no further evidence or information to the Department and the delegate refused the application on the material before it.
Information from Departmental movement records show that the applicant first arrived in Australia [in] February 2917 as the holder of a Subclass 417 visa. He was granted another Subclass 417 visa in August 2017 and was granted a student Subclass 500 visa on 19 March 2018. He has travelled from Australia on three occasions since his first arrival, [August] -[September] 2017, [March] 2018 and [November] - [December] 2018.
Tribunal Hearing 7 March 2022
The following evidence was obtained from the applicant at the hearing. He is living at the same address provided in his application and has been at that same address since he came to Australia in 2017. He lives by himself, renting a room in a house. He works at a [Workplace 1] and has been employed at the same place since 2017.
The applicant confirmed he completed the application form with assistance from an agent, but cannot recall the full name or qualifications of this person. He stated that he is familiar with the information in the application, including the written statement and continues to rely on this as true and correct and has nothing to change or correct.
The Tribunal asked him about his family composition. He stated that he remains single. His only living family member is his grandfather. His father passed away more than 10 years ago, from illness related to [a condition]. His mother divorced his father when he was born and he has never lived with his mother. She has her own family. He was brought up by his grandparents and father. He visited his mother sometimes when he was growing up, but the visits were rare. His grandmother passed away just before he came to Australia. Apart from his grandparents, he believes he has a maternal uncle and an older half brother but he has no relationship with either of them. His grandfather lives alone in his own home. He has a government aged pension and some farmland. The applicant also sends him money. The applicant contacts him but not very often because his grandfather is not familiar with technology including mobile phones so he needs someone to help him to have video calls with the applicant.
The Tribunal asked the applicant about his address history. He gave the address listed in the application. This is where his grandfather still lives and it is where he lived from childhood until 2014. After 2014 the applicant said he moved out to another address. He cannot recall the exact address. He moved out and lived alone because of his participation in a political ‘gathering’ which then led to some people acting in an ‘irrational manner’ towards him and he was worried for his grandparents’ safety. His grandparents did not know about his activities, they assumed he moved away for work.
The Tribunal asked the applicant about his employment history. He said he worked at a [Workplace 2] and as [an Occupation 2] at a [Workplace 3] prior to coming to Australia. He studied at school until 2010 and then left school to work. He worked in [Workplace 1]s from 2011 to 2014. Then he returned to vocational school for two years but he did not complete this. He was working part time and studying in this period and supported himself at school. In November 2016 he completed his mandatory military service. He only did two weeks because he was able to shorten the period on the basis of his care responsibilities at home. He presented a family disability certificate to support this.
At the end of 2016 his grandmother passed away. Her cremation was in January 2017. After this he applied for a visa to come to Australia. He researched this option himself and applied for a working holiday visa. His grandfather was fine about him coming here to work. When he arrived he travelled to [City] and found work and has remained there since then.
The applicant confirmed that he travelled to Australia on his own passport, which he applied for in person in 2017. It is valid to 2027. He has no problems departing the country.
The Tribunal asked the applicant about his travel since arrival in Australia. He confirmed that he has returned home three times since then. The Tribunal put to him the dates of travel obtained from movement records. He agreed with these dates and periods of travel. He said each time he returned to his home town to see his grandfather. He had no specific reason for returning other than to see his grandfather. The Tribunal asked if he had any issues or problems when he returned on any of these visits. He said he did not.
The Tribunal noted he applied for and was granted a student visa in March 2018 and asked why. He said he wanted to prolong his stay in Australia to avoid returning to Taiwan. He studied language and also did a [course]. He rarely attended classes but submitted assignments online and was working 20 hours a week.
The Tribunal asked the applicant why he lodged this application in February 2020. He said he joined a political party in 2014 and attended a ‘gathering’ with members of this party and after this he suffered problems. The Tribunal asked him to elaborate on this. He said when Ma Ying Jeou was elected for the Kuomintang (KMT) Party in 2012, he started to develop his pro- China views. Later he found out, through a friend, about the China Unification Promotion Party (CUPP) which better reflected his views for reunification with China and opposition to independence for Taiwan. His friend invited him to join the CUPP protest at the Sunflower gathering that took place in 2014. They went and helped to hold the party’s protest banner at the march. This was the only activity that he did with the party.
After this, he experienced problems at work and at school and the police questioned him. The Tribunal asked him to elaborate. He said he was questioned by police at the station once. They asked him about when he joined the CUPP, whether he visited mainland China and whether his family were from mainland China. He denied it all and just told them that he opposed independence of Taiwan. He was not arrested or charged after that. He had no other interactions with police. However he experienced insults, harassment and intimidation at work and at school from members of the public who did not like that he protested with the CUPP at the Sunflower gathering. He does not know who these people are and assumed they are classmates and workmates who supported independence for Taiwan.
The Tribunal explored with the applicant his knowledge of the CUPP. He was aware of its leader, Chang An Le. All he knows about him is that he is opposed to separation by Taiwan from China. [Mr A] is the person who rallied them to join the protest activity with CUPP. The applicant saw Chang An Le at the Sunflower gathering from a distance. He has never met him personally. The Tribunal asked if he was aware of his connection with the Bamboo Union gang. He said he was not sure about that. When the Tribunal put to him that information before it indicates this Bamboo Union organisation has criminal associations and Chang An Le is known to be the former boss of it, the applicant said he has no views about that.
The Tribunal asked the applicant what he fears now about returning to Taiwan in 2022 as it is many years since that event in 2014 and he has already returned for visits three times since 2017. He said he worries about his life and safety and is concerned he won’t be able to work or study normally.
The Tribunal put to him that his three voluntary returns suggest he has no subjective fear of return and that he did so without experiencing any issues, suggests no adverse interest in him from the authorities. The applicant said that is not correct. He had to return in secret fashion and could not go to his hometown and could not stay for long. The Tribunal noted that this is different to what he said earlier, where he never mentioned such difficulties. He said earlier he thought the Tribunal was asking about whether he had problems with police, not whether he had problems with other people.
The applicant reiterated that he fears harm from those people, unknown to him, who support independence for Taiwan. He fears they will harass and insult him as they did previously. The Tribunal noted that many years had passed since that last occurred. He agreed but said he still can’t be sure it won’t happen again.
The Tribunal discussed with the applicant independent information before it regarding the CUPP indicates there has been some official interest and probes into the leaders and some members of the party, but those members that have attracted the adverse attention of law enforcement authorities, have been linked with crime, taking illicit political donations, embezzlement, tax evasions and forging financial documents. While some CUPP members who have come to the adverse attention of Taiwanese authorities for these reasons have been charged and prosecuted, it would appear to be because they have breached various laws in Taiwan such as Political Donations Act, the Business Entity Accounting Act, the Banking Act and the Company Act. The Tribunal may find that this suggests the attention of the authorities in the activities of members of this party are not for reasons of their political view or opinions but in the course of prosecution of laws that apply to everyone.
It also discussed with the applicant that independent information indicates that Taiwan has a democratic system comprising multiple parties-one of which is pro China and pro business (KMT) and there is no information to indicate the members of KMT have come to the adverse attention of the Taiwanese government authorities for wishing or proposing to pursue closer ties with mainland China. It invited the applicant to comment to this country information.
In response the applicant said that he accepts that there are these two main parties and other smaller parties but most of the parties are pro-independence and only the CUPP is strongly opposed to independence. While there is freedom of political expression there are also irrational members of the public from whom he fears harm. The applicant stated that the current leader in Taiwan is pro independence and this is not good for him. If the leader was from the Kuomintang (KMT) Party he would be in a better position upon return.
The Tribunal asked the applicant if he has considered relocating to mainland China given his views in favour of unification. He said he has considered that but he is not that familiar with mainland China and would need more time to research his options there. The Tribunal asked if there is any reason he fears harm in mainland China. He said there is not anything for him to worry about there.
It asked if, apart from what he has referred to above, there is any other reason he fears return to Taiwan. He said there is not.
Independent information
The Tribunal has considered the country information cited by the delegate in the decision record regarding the Chinese Unification Promotion Party:
With regard to the Chinese Unification Promotion Party (CUPP), country information indicates that in September 2017, government agencies launched a probe into CUPP, run by Chang An-lo, a former triad leader known as White Wolf, over concerns that Beijing was funding its activities. Mr Chang denied the accusations. This report also refers to Police in Taiwan arresting a prominent media personality, along with three colleagues from the pro-unification New Party on suspicion of violating the National Security Act. The investigation was the second in months into a minority party supporting unification with the Chinese mainland, and came amid heightened tensions between the government of self-ruled Taiwan and Beijing.[1]
A later report, from May 2019 indicates that four members of the CUPP were detained and questioned by police as part of major sweeps nationwide which resulted in 350 people being detained for alleged participation in illicit activities related to organised crime, as well as loan sharks and underground money dealers. Criminal Investigation Bureau officials stated their aim was to uphold public security and prevent major gangs from disguising themselves as political parties to interfere in the run-up to next year’s elections, as well as to cut off their funding from outside Taiwan and money laundering operations. A total of 350 people suspected of criminal activities were detained and questioned, including 45 alleged gangsters wanted by police. The sweeps targeted members of major crime syndicates including the Bamboo Union, the Four Seas Gang and the Heavenly Way Alliance, who have allegedly been involved in street violence, blackmail, larceny, drug trafficking and illegal firearms possession.[2]
A more recent report, from August 2019, indicates that Taipei prosecutors have charged CUPP founder Chang An-le and five other party members with taking illicit political donations, embezzlement, tax evasion and forging financial documents, with some of the charges related to funds received from China. Prosecutors said Chang and other party members made illegal gains of about NT$36 million (US$1.14 million) in contravention of the Political Donations Act, the Business Entity Accounting Act, the Banking Act and the Company Act. Prosecutors also charged Chang’s son, Chang Wei; Lee Hsin-yi, who had briefly served as CUPP chairman; Chang Wei’s wife, Wang Shu-yin; and, two other party members.[3]
[1] 'China outcry as Taiwan arrests pro-Beijing party members accused of spying', Telegraph Group -United Kingdom, 20 December 2017, 20190902143524
[2] 'Police detain 350 in crackdown on organized crime', Taipei Times, The, 04 May 2019, 20190612121730
[3] 'Prosecutors charge ‘White Wolf,’ other CUPP members with illegal gains', Taipei Times, The, 14 August 2019, 20190902143851

Other sources considered indicate that elections in Taiwan are fair and free.[4] Taiwan’s multiparty democracy features vigorous competition between the two major parties, the Democratic Progressive Party (DPP) and the Kuomintang (KMT). Smaller parties are able to contest elections. 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.[5]
[4] ‘Freedom in the World 2021 Taiwan', Freedom House, 4 March 2021, A2, 20210329082238; ‘BTI 2020 Country Report:
[5] ibid
The KMT tends to favour closer ties with the mainland and the DPP tends to favour independence.[6] The origin and extent of electoral interference in favour of the KMT is disputed, but allegedly involves cyber-attacks, social media disinformation campaigns against the DPP and PRC investment in private Taiwanese media outlets.[7]
[6] In a blow to China, Taiwan’s president coasts to a second term', The Economist, 11 January 2020, 20200605121015; ‘Friend or Foe? Beijing Sizes up the KMT’s New Chair’, The Diplomat, 17 March 2020, 20200605131050.
[7]'What does Taiwan's public think about election interference from China?', The Diplomat, 10 January 2020,
FINDINGS AND REASONS
Country of reference
The applicant has made claims for protection from Taiwan, as the country of his nationality and citizenship.
Taiwan is a democracy governed by a president and parliament selected in multiparty elections,[8] but is officially recognized as a sovereign state by few nations in the world.[9] Although Australia does not formally recognise Taiwan (Republic of China) as a sovereign state and does not regard it as having the status of a national government, it nevertheless has a substantial relationship with Taiwan including trade and investment, education, tourism and people-to-people ties.[10] The Tribunal acknowledges that the issue of Taiwan’s identity as China or part of China is a complex and nuanced political and historical question.
[8] Countries That Recognize Taiwan 2022 (worldpopulationreview.com)
[10] See Australia-Taiwan relationship | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)
For the purposes of the protection criteria, ‘receiving country’ is defined in s5(1) of the Act to refer to ‘country of nationality’ or ‘country of which a non citizen is a national’ but ‘the term country is not specifically defined. Consistent with an approach that the term ‘country’ should not be construed in a narrow technical way, and having regard to the requirements of statehood set out in the Montevideo Convention on the Rights and Duties of States [11] and judicial authority identifying relevant features of a country to include an ability to confer nationality on a person, possession of a system of domestic law and a sovereign law-making body, and responsibility for national security,[12] the Tribunal finds that Taiwan (Republic of China) meets the requirements to be recognised as a country of the purposes of the refugee definition and definition of ‘receiving country’ in s5(1).
[11] Convention on the Rights and Duties of States art 1. Which refers to the following features (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter relations with other states
[12] BZAAH v MIAC (2013) 213 FCR 261 at [28] and [46].
On the evidence of the applicant’s passport provided to the Department with his application, the Tribunal accepts that he is a citizen of Taiwan and assesses his claims against Taiwan as the country of his nationality and receiving country for the purposes of assessing his protection claims.
Protection claims
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. 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 or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all 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.)
In the present case, the applicant fears harm if returned to Taiwan from people who support independence for Taiwan because of his political views opposing independence. He claims he joined the China Unification Promotion Party (CUPP) protest at the Sunflower gathering in 2014 and helped to hold the party’s protest banner at the march. In elaborating on his claims before the Tribunal, he confirmed that this was the only political activity he attended with this party in Taiwan or since then. He claimed that following this event he was questioned by police once but was never arrested or charged and he has had no other interactions with police in Taiwan. He claimed he was insulted, harassed and intimidated at work and at school from members of the public who did not like that he participated with the CUPP at the Sunflower gathering by people unknown to him who presumably held pro independence political views. He provided no details of specific harm he experienced on those occasions. He claims he fears similar harassment and insults if he were to return in future, particularly given the present government led by the pro-independence party.
Since his participation in the Sunflower gathering in 2014, the Tribunal observes the applicant remained living in Taiwan until he came to Australia in February 2017. On his own evidence he was not involved in any other events or activities associated with the CUPP party or any other political activity. Since coming to Australia he has returned to Taiwan three times, voluntarily, to visit his grandfather and suffered no problems or harm. He was able to enter and depart the country without issue.
The Tribunal was unable to find any independent information to confirm the presence or participation of CUPP at the Sunflower protests of 2014 in Taipei and the applicant himself offered no supporting evidence of his involvement. However despite this, for the purposes of the present assessment, the Tribunal accepts as possible, if not certain, that the applicant joined in under a CUPP (a pro-China group) banner at the Sunflower gathering in Taipei in 2014. It accepts that this stance may have been unpopular among members of the population who support independence, and the majority of participants at these protests, particularly given the context of the Sunflower Movement which was essentially a student led protest movement resisting the incumbent KMT government’s trade deals with China.[13] The Tribunal explored with the applicant at hearing his knowledge of, and involvement with, CUPP and his responses revealed that he had limited knowledge of, or interest in, this organisation. He has not claimed any involvement with them beyond that one event in 2014. He claimed he was questioned by police about his involvement following the event, but never arrested or charged. He indicated he has had no other issues or problems with police since them on that basis or any other. The Tribunal notes that his oral evidence to the Tribunal contradicted his written claims, where he claimed he was “often called and interrogated by the police” and “his actions were monitored and under surveillance” and that he was “suspected to be a spy for the CCP and collecting information and documents for them and was unable to work and live his life”. The Tribunal prefers his oral testimony to the Tribunal over his written claims, given that he was provided the opportunity to elaborate and detail his claims. On the basis of his oral evidence the Tribunal finds that the applicant has no involvement with CUPP beyond attending on one occasion under their banner a protest at the Sunflower gathering in 2014. The Tribunal does not accept that he is of any ongoing interest to the police or authorities for this or any reason.
[13]The Road to Mainstream Politics: How Taiwan’s Sunflower Movement Activists Became Politicians, Ming-Sho HO, 24 October 2019, >
On the basis of his evidence and limited knowledge and activities with CUPP the Tribunal is not satisfied the applicant has any profile or affiliation with this party that would attract any adverse attention towards him upon return in the reasonably foreseeable future. That he encountered no problems or issues on any of his recent return visits since 2017 supports this conclusion.
Independent information before the Tribunal, referred to above, indicates there is relative freedom of political expression in Taiwan and, as a multiparty democracy, there are numerous political parties with different political views and opinions that are free to contest elections. Of the two major parties, the Kuomingtang favours closer ties with the mainland as opposed to the Democratic Progressive Party which is pro-independence. While the current leader, who won office in January 2020 for a second four year term, is from the DPP the KMT has won elections in the past, and was most recently in power from 2008 to 2016. The Tribunal accepts that the pro China party CUPP has attracted adverse attention of the authorities in recent years as indicated in the country information referred to in the delegate’s decision, and since then[14] however, given the findings above that the applicant has no affiliation or profile with this party, the Tribunal is not satisfied he faces a real chance of serious harm upon return for any reason relating to this party or organisation.
[14]Calls made for CUPP’s Chang An-le to be charged with risking national security >
The Tribunal has considered the applicant’s claimed fear that he will be subject to harassment and insults because of his pro China, anti-independence political opinions. While acknowledging his views may be in the minority and against the mainstream, the Tribunal is not satisfied that harassment or insults he may face for this reason in future would amount to serious harm as contemplated by that term in the s5J(5). There is no evidence that he faced significant physical harassment or ill treatment in the past for this reason or significant economic hardship threatening his capacity to subsist or was denied access to basic services or a capacity to earn a livelihood, and there is no basis to conclude he would face any such harm in future upon return.
On the basis of country information and the applicant’s claims and past experiences, the Tribunal is not satisfied there is a real chance he will face serious harm, within the meaning of that term, for reasons of his political opinion, or any other reason specified in s5J(1) upon return to Taiwan in the reasonably foreseeable future. While accepting that his political opinion may not presently be a majority view in his country, the Tribunal is not satisfied there is a real chance he will face harassment or insults of a nature that would constitute serious harm.
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). Having regard to the findings above that the applicant does not face a real chance of serious harm for reasons of his political opinion, the Tribunal is not satisfied that there is a real risk he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture if he is returned to Taiwan. The Tribunal is not satisfied that harassment or insults directed to him because his political views amounts to cruel or inhuman treatment or punishment; or degrading treatment or punishment within the meaning of those terms. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Meena Sripathy
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.
…

Taiwan', Bertelsmann Stiftung, 29 April 2020, p. 8, 20200430114455

20200605132316; 'Democracy Facing Global Challenges V-Dem Annual Democracy Report 2019', University of Gothenburg,
May 2019, 20191205104146

[2022] AATA 1443

12 April 2022

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