2011839 (Refugee)

[2022] AATA 846

2011839 (Refugee) [2022] AATA 846 (4 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2011839

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:K. Chapman

DATE:4 February 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 04 February 2022 at 9:21am

CATCHWORDS
REFUGEE – protection visa – Taiwan – fear of harm from gangsters – no response to s.424(2) invitation – not entitled to appear before the Tribunal – delay in seeking protection – effective state protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424, 424C, 425
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v MZYYL [2012] FCAFC 147
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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 June 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant, who claims to be a citizen of Taiwan, applied for the visa on 31 October 2019. Her written claims concern her purportedly working at a State owned factory which caused health problems for local residents and workers. The applicant contends she raised these health concerns with her manager but was warned not to do so again. She submits she went to report the matter to the Government but was harassed and attacked by gangsters engaged by the factory management. She also apparently had her property damaged. The applicant fears harm from the gangsters, factory management and Government authorities linked to the factory. The delegate refused to grant the visa on the basis that State protection was available to the applicant if she returns to Taiwan. The applicant applied for review of the delegate’s visa refusal decision on 19 July 2020, providing a copy of that decision with her application for review.

3. On 2 December 2021, the Tribunal invited the applicant to attend a hearing in person scheduled for 18 January 2022. No response to the hearing invitation was received from her. On 11 January 2022, the Tribunal sent the COVID-19 Declaration Form to the applicant. No response to this correspondence was received from her. Due to the emerging COVID-19 situation in Queensland, on 14 January 2022, the Tribunal postponed the scheduled hearing and advised the applicant in writing. No response to this correspondence was received from her.

4. On 18 January 2022, the Tribunal wrote to the applicant pursuant to subsection 424(2) of the Act, inviting her to provide further information in support of her claims that she requires a protection visa. The Tribunal is satisfied that this invitation was properly despatched to the applicant, who failed to provide the information within the prescribed time for responding, which ended on 1 February 2022. At the time of this decision, the Tribunal has not received a response to its invitation issued pursuant to subsection 424(2) of the Act.

5. Where an applicant is invited to provide further information in accordance with subsection 424(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 424C(1) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with subsection 425(3) of the Act, unless it exercises discretion to permit this.

6. Following careful consideration, the Tribunal has decided not to exercise its discretion to permit the applicant to appear before it to give evidence and present arguments. This is for the following reasons. The applicant’s written claims lack detail and are unsupported by persuasive corroborative evidence. As indicated in her protection visa application, the applicant arrived in Australia [in] November 2015, yet she delayed claiming protection until 31 October 2019. Such delay tends to undermine the genuineness of her written claims for protection.

7. Furthermore, in addition to failing to respond to its invitation of 18 January 2022, the applicant did not respond to the Tribunal’s correspondence of 2 December 2021, 11 January 2022 and 14 January 2022. It is worth pausing to reflect that the applicant has not engaged with the Tribunal since lodging her application for review on 19 July 2020, thus demonstrating a manifest lack of engagement with the review process. Accordingly, following careful consideration, the Tribunal has decided to proceed to make its decision on this review, without taking any further action to obtain the information referred to in its invitation issued pursuant to s.424(2) of the Act.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.

13. 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.

14. ‘Significant harm’ for these purposes is exhaustively defined in the Act: s.36(2A) and s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

15. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    State protection

16. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

    Mandatory considerations

17. 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

    Country of reference

18. According to the protection visa application, the applicant claims to be a citizen of Taiwan. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Taiwanese national. Taiwan is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

19. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Issues

20. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Taiwan, there is a real risk she will suffer significant harm.

    Documentary evidence before the Tribunal

21. The Tribunal has its own file, and the Department file, relating to the applicant before it. Information including, but not limited to, the following is contained in those files:

    a.the applicant’s protection visa application forms lodged on 31 October 2019;

    b.a copy of the applicant’s passport;

    c.the Departmental delegate’s visa refusal decision dated 26 June 2020 (a copy of which was provided to the Tribunal by the applicant);

    d.the application for review submitted on 19 July 2020; and

    e.Departmental administrative and Movement records.

    Claims for protection

22. The applicant has made claims for protection, which are summarised by the delegate as follows:

    a.“The factory where she worked was making people sick and she reported this to her manager;

    b.Her manager told her not to report the matter again;

    c.She decided to report the matter to the government;

    d.On the way to the government she was harmed by gangsters who were sent by the head of  the factory where she worked;

    e.The gangsters threatened that they would kill her if she reported the factory again;

    f.She tried to move to another location in Taiwan but she was found by the gangsters;

    g.The local authority can get profits from the factory where she worked so they will not protect  her; and

    h.If she returns to Taiwan she will be harmed by gangsters.”

    Analysis  

23. That a person claims to fear persecution for a particular reason does not of itself 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. 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 (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70. Section 5AAA of the Act also provides that it an applicant’s responsibility to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such claim.

24. The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. Given the vagary and lack of detail provided in the applicant’s written claims, combined with her significant delay in claiming protection, the Tribunal is not satisfied of the genuineness of her claims. Of note, the Tribunal has afforded the applicant a meaningful opportunity to submit further material in relation to her claims for protection, however, she has declined to do so. The Tribunal also notes the country information, referred to in the delegate’s visa refusal decision, suggests the applicant can avail herself of State protection in Taiwan regarding gangsters and corrupt officials and that there is not a real chance of harm for her arising from her claimed reasons.

25. Of note, recent country information regarding the Taiwanese Police, corruption, the judiciary and criminal groups also tends to suggest there is no real chance of serious or significant harm for the applicant on account of her reasons for seeking protection. For example, the Taiwanese Police are considered an effective force[1] and they actively target criminal gangs[2]. The judicial process is widely considered to be fair.[3] Corruption in Government is generally low[4] and ‘whistle-blower’ protections are enshrined in law[5].

    [1] ‘Taiwan 2020 Crime & Safety Report’, 17 March 2020, Overseas Security Advisory Council, US Department of State, p.1.

    [2] ‘Law and Order: Taipei police commissioner reassures public on safety’, 7 May 2021, Taipei Times.

    [3] 'BTI 2020 Country Report: Taiwan', 29 April 2020, Bertelsmann & Stiftung, p.10.

    [4] ‘Corruption Perceptions Index 2020', 28 January 2021, Transparency International, p.2.

    [5] ‘BTI 2020 Country Report: Taiwan', Bertelsmann & Stiftung, 29 April 2020, p.29.

26. Having carefully considered all of the evidence, the Tribunal is unable to be satisfied as to the veracity of the applicant’s claims that she has raised in her protection visa application. In particular, the Tribunal is not satisfied that the applicant has ever faced harm in the past, or would be at any risk of facing harm in the reasonably foreseeable future, from gangsters, factory officials, corrupt persons in the public sector of Taiwan, or any other individual, due to her seeking to report ill health effects from the factory where she worked or for any other reason. The Tribunal is also not satisfied that the applicant cannot avail herself of the protection of the Taiwanese authorities if she were to return to her country of nationality.

    CONCLUSION

27. Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Taiwan, there is a real risk that she will suffer significant harm.

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

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

    DECISION

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

    K. Chapman
    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.

    …