2011924 (Refugee)

2011924 (Refugee) [2022] AATA 1274 (18 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2011924
COUNTRY OF REFERENCE:                  Taiwan
MEMBER:Brendan Darcy
DATE:18 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 March 2022 at 11:11am
CATCHWORDS
REFUGEE – protection visa – Taiwan – loan sharking – organised crime and criminal gangs – non-appearance before the Tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 414, 426A, 441A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 July 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 the Republic of China (Taiwan), applied for the visa on 14 July 2019.
The delegate refused to grant the visa on the basis that that the Taiwanese authorities are willing and able to provide effective protection to the applicant from organised crime and criminal gangs for the purpose of s.36(2)(a) and because the applicant could obtain, from an authority of Taiwan, protection such that there would not be a real risk that the applicant will suffer significant harm as outlined in s36(2B)(b) under the complementary protection provisions.
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant, a female, was born on [date] in Tainan in the Republic of China.
A copy of the applicant’s valid passport issued by the authorities in Taiwan [in] 2017 can be found on the applicant’s Departmental file ([number]).
[In] June 2019, the applicant arrived in Australia as a holder of a Class TZ Subclass 417 Working Holiday visa.
On 14 July 2019, the applicant lodged a Class XA Subclass 866 protection visa and was granted an associated bridging visa.
The applicant’s written claims in the submitted online application form were as follows:
·     The applicant was an intern at a financial company in Taiwan. The manager insulted the applicant, and her boyfriend was angry about this. This company was an ‘usuary company’ involved in loan sharking and was run by gangsters.
·     The applicant’s boyfriend copied and collected evidence of the company’s crimes and reported the company to the police, however the police did not accept the report as they had been bribed by the company.
·     The applicant was chased by the gangsters from the company and managed to escape
·     The applicant did not attempt to relocate to another area of Taiwan (as it is very small), as the gangsters are very powerful in Taiwan, and the police have been bribed by them.
·     If the applicant returns to Taiwan, she fears that she will be caught and killed by the gangsters, due to the fact that she has reported their activities to the police.
In the application form for a protection visa, the applicant further claimed to be ethnically Chinese; to be Christian by religion; and that she can speak, read and write Chinese. She also claimed her marital status to be ‘never married. No supporting documents were submitted.
In addition, on 18 July 2019 the applicant was sent an acknowledgement of valid application letter which advised them that they could provide additional information relating to their claims and that there were three ways for them to provide it: ImmiAccount, mail or in person at the time of the collection of personal identifiers. The letter also informed the applicant that the decision on their application could be made without another opportunity for them to present any further information. No additional information has been received by the Department and it proceeded with its decision-making duties.
A delegate acting on behalf of the Minister refused to grant the applicant a protection visa on 21 July 2020.
On 20 February 2019, the applicant validly applied to have the delegate’s decision reviewed by the Tribunal. A copy of the decision recorded was not attached to the application for review.
On 3 November 2021, the applicant was invited to attend a hearing to provide evidence and present arguments that she was owed Australia’s protection obligations. The invitation was emailed to the applicant on [email address]. The date for the scheduled hearing was 19 November 2021 to be conducted by video conference using Microsoft Teams or to conduct the hearing in audio.
The Tribunal received an email from the applicant on 8 November 2021 stating, in full:
Dear
I do not have the appropriate technology or there are other barriers which would prevent me from participating in a hearing scheduled via Microsoft Teams
The 19 November 2021 hearing was cancelled.
On 8 December 2021, the applicant updated the Tribunal about its current residential address in [City 1], New South Wales. No other details were updated.
On 25 February 2022, the applicant was invited to a hearing via MS Teams and the option to call in by audio only. It was scheduled for 16 March 2022 at 1.30pm. The invitation was sent to the same email address as the earlier invitation. (The Tribunal consciously invited the applicant in the manner as the applicant had changed her address from metropolitan Melbourne to rural New South Wales where an in-person hearing was unlikely to be accessible or practicable).
The invitation was sent to the correct address, as required by sections 414 and 441A of the Act.
On 9 March 2022, the Tribunal phoned the applicant on three occasions between 2.00Pm and 2.10PM regarding the hearing. The applicant did not answer the calls and the calls went to voicemail.
Two SMS hearing reminder messages was successfully sent to the mobile phone number ([mobile number]) last provided by the applicant on 8 and 15 March 2022 respectively.
No response to the invitation was provided to the Tribunal up to and including the day of the scheduled hearing.
On 16 March 2021, the applicant did not attend the hearing at the scheduled time. A Tribunal official attempted to call the applicant on the last known mobile phone number on three occasions in the fifteen minutes prior to the scheduled time. An additional additional fifteen minutes was added to the hearing to allow the applicant an opportunity to present arguments and evidence and to account for any very late requests or submissions for an adjourned hearing. During this period, a Tribunal official called the applicant a further two times to participate in a hearing via an audio call. However, the applicant did not respond at all.
The Tribunal waited more than 24 hours for the applicant to explain her non-attendance. The Tribunal did not provide any medical certificate from a medical professional about her non-attendance. At the time of writing this decision, the Tribunal had not received any submissions.
It is noted that the applicant was provided ample opportunity to respond to the hearing invitation that a hearing by audio or teleconference was not desirable and to provide reasons for that. However, the applicant did not respond to the hearing invitation or other to other instances when officials from the Tribunal attempted to contact the applicant prior to the scheduled hearing on multiple occasions.
In these circumstances, and pursuant to s462A of the Act, the Tribunal has decided on the review without taking any further action to enable the applicant to appear before it.
(There are no non-disclosure certificates attached the Departmental and Tribunal files pertaining to this protection visa application.)
ASSESSMENT OF CLAIMS AND FINDINGS
Country of Reference
The applicant has claimed to be a citizen of the Republic of China (Taiwan). She provided a copy of her passport issued by Taiwanese authorities to the Department. On the basis of this evidence, the Tribunal finds the applicant is a national of Taiwan for the purposes of the Convention and that her country is the receiving country under sections 5H and 36(2)(aa) of the Act.
Assessment of Claims
The applicant had made some vague and limited written claims that she has been pursued by a criminal origination after taking copies of illicit activities, specifically loan sharking, to the authorities and that the authorities refusing to assist the applicant due to corruption. The claims lacked detail such as general dates and timelines as well as names. There was also documentary evidence or third-party statements to substantiate or corroborate these claims.
The applicant, however, did not appear before the Tribunal to elaborate upon her claims. The Tribunal does not accept the applicant was unable to attend the scheduled hearing for medical reasons that she was unfit to attend a Tribunal hearing, given the applicant did not respond to the scheduled hearing invitation and given the applicant did not provide any explanation for the applicant’s non-attendance at any time in support of any request for an adjournment or a postponement.
Had the applicant attended the scheduled hearing, it would have informed the applicant that it requires a good deal more information to assess whether the claims for protection were credible and met the criteria under sections 36(2)(a) and 36(2)(aa). It would have asked the applicant about specific details about the business for which she was an intern, the name of the manager who insulted her, and the reasons the insults triggered her boyfriend to collect incriminating evidence against the business. The Tribunal would have sought more details as to how the applicant discovered the business was involved in usurious and illicit money lending and how it was run by gangsters. It would have asked whether the organised criminal outfit had a name and whether it was well-known.
Has the applicant appeared before the Tribunal, it would also asked about details about threats against the applicant and her boyfriend were threatened, including the manner in which those threats were conveyed. It would also have asked the applicant for a copy of the any complaint submitted to the police and how the applicant and her boyfriend became aware of the police taking a bribe not to pursue the matter. It would have also asked if any family members were threatened or harmed based on these claims.
The Tribunal would have also enquired into the reasons the criminal organisation continued to pursue the applicant or that she remained a person of interest to them, given the police would not seek to investigate the company’s alleged illicit moneylending and related activities. It would have also sought details whether the applicant’s boyfriend had been harmed and his current circumstances and whether he would corroborate the applicant’s claims with a third-party statement or as a witness during a scheduled hearing.

40. Furthermore, the Tribunal would have referred to country information on Taiwan in relation to the situation experienced by victims of organised criminal and returnees whose asylum seeker claims have failed. It would have also discussed about the degree of protection provided by the authorities. However, the applicant did not attend the hearing to relevantly comment on this or any other country information.
41. The Tribunal would have asked if there were any reasons, she fears returning based on her ethnicity, religion, nationality, political opinion or any membership of a particular social group that the applicant had not yet advanced or any for any other recent changes in her circumstances relevant to Australia’s protection obligations. It would also asked the reasons the applicant could not relocate within Taiwan given it has a sizable population of more than 23 million people.

However, the applicant did not attend the scheduled hearing and no reasons for her non-attendance was ever provided.
The Tribunal notes that the Department provided the applicant with an opportunity to elaborate on her claims when it wrote to the applicant in July 2019. This strongly indicates to the Tribunal that there is a lack of urgency, gravity and credibility to the applicant’s claimed fears.
Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim to person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
In the context of the applicant’s non-responsiveness to a Departmental request to elaborate on her claims, the Tribunal considers her non-attendance to the scheduled hearing strongly indicates that there is no credible basis for the applicant's otherwise limited, vague and unsubstantiated fears.
In the context of the applicant’s non-responsiveness to elaborate on her claims to both the Department and the Tribunal and based on the available evidence about the applicant’s circumstances, both individually and cumulatively considered, the Tribunal finds there is no real chance that, if she returns to Taiwan in the reasonably foreseeable future, she would be persecuted for any reason.
The applicant’s fear is not well-founded as required by s.5J of the Act and therefore she is not a refugee within s.5H of the Act.
Based on the same considerations about the applicant’s circumstances, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Republic of China there is a real risk, she will suffer significant harm.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1274

18 March 2022

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