2012508 (Refugee)

2012508 (Refugee) [2022] AATA 2019 (2 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2012508

COUNTRY OF REFERENCE: Taiwan
MEMBER:Melissa McAdam
DATE:2 May 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 May 2022 at 10:31am
CATCHWORDS
REFUGEE – protection visa – Taiwan – political opinion – political activity in Taiwan – Sunflower Student Movement – Hong Kong Umbrella movement – political activity in Australia – social media messages – ‘stalking’ and threats in Taipei – country information – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5J, 5H, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 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 Taiwan, applied for the visa on 19 February 2020.
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.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The following is a summary of the claims and information the applicant provided in her Protection visa application:
a.She was born in [year] in Taiwan. She submitted a copy of her Taiwanese passport.
b.She is single.
c.She departed Taiwan [in] January 2020 and arrived in Australia on a Visitor visa.
d.She escaped from Taiwan to Australia because something happened in Taiwan. The incident also caused all her friendships to be shattered. Taiwan is a difficult country and has laws to protect the senior characters and richest people only. Taiwan has a very small population and is often hurt when the police cannot see it and the other party is a member of the gangster. They have a few of the largest gangster groups in Taiwan, which have smuggled arms and drugs in Asian countries. They won't get caught because they bribe the chief and officer in Departments of Police, Customs, Road Transport and Immigration. In Taiwan money is the king, if you can bribe more money to Police Officers or any government department senior chief, they can help you solve any problems including murder case. There is political involvement in Taiwan so it makes it more complicated.
e.After the applicant came to Australia, the gangsters were still planning to come to Australia to seek her. She can't imagine the results of the follow-up.
f.She hopes that Australia can become a country where she can live for the rest of her life. She dares not go back to Taiwan again. She is living a life of fear, because life in Taiwan always feels very close to death.
g.They are so many gangsters in Taiwan. Police also ignore them and won't do anything. The gangsters in Taiwan are lawless.
h.The applicant was harmed by gangsters then went to seek help from the police. They would not help her and also they told her to move house to another site. Taiwan has no judiciary and the police in Taiwan are very corrupt. She has tried to move to another area but it was the same. There are so many gangsters in Taiwan. The Taiwan government is corrupt.
Delegate’s Decision
The Delegate was unable to be satisfied that the applicant had a well-founded fear of persecution in Taiwan, or that she was owed complementary protection.
Information to the Tribunal
Pre-Hearing Submission
On 3 April 2022 the applicant provided the following written information to the Tribunal:
- A typed unsigned letter from the applicant in which she states the following:
I need to leave Taiwan; living in Taiwan scares me. Since I got the right to vote at the age of 20, I have been concerned about political issues in Taiwan, especially the relationship between Taiwan and China. What makes me sad is that China has used various means to exert pressure internationally, which has caused Taiwan to receive much international attention.
Unequal treatment.
We in Taiwan have our currency and passports, but they must be under the name of China; we are also forced to withdraw from evil methods such as WHO. Then [social media] rose in the online world. I used this medium to share and publish many destructive behaviours in China and published my dissatisfaction with the Chinese government on [social media]. I am also actively involved in political activities, such as the Sunflower Student Movement in Taiwan in 2014.
I was in Australia at the time, and I participated in a parade here in Australia to shout at the Taiwanese government.
I love Taiwan very much. I hope that Taiwan can become better. I believe that political activities can make Taiwan more advanced.
[In March] 2019, during the Anti-Extradition Law Amendment Bill Movement in Hong Kong, I participated in the parade in Melbourne [in June], in early January 2021, in order to elect the President of Taiwan and participate in related activities of the Anti-Extradition Law Amendment Bill Movement, because this is a crucial election and the next victim will be Taiwan, so I return to Taiwan.
In this short period of time, I felt the threat of stalking. The Chinese government has been invading Taiwan's confidential files in various ways and even affecting our elections. The government has joined forces with the underworld to attack the people of Hong Kong. The underworld forces are not only in Hong Kong but also in Taiwan. In the "Umbrella" incident, they hurt Hong Kong people on Taiwan soil.
In those days, I didn't dare to walk alone in the alleys at night. When I took public transportation, someone held a knife against my back. Every day before I went out, I was worried that someone would block me at the door. I must say that Taiwan is really not as safe as it seems. The police in Taiwan are making things difficult for the people, but they are afraid of the underworld. The gangs even fight in front of the police station, but they dare not step forward to stop them.
Because the license plate is too dirty? We don't trust our judiciary because our laws only protect the powerful or wealthy. On the other hand, the Australian police are majestic and friendly. The Australian police give me a sense of security. They can truly protect the people and punish the wicked. Australia makes me believe that it is a country with justice and no corrupt officials.
After the passage of the National Security Law for Hong Kong on June 30, 2020, I am convinced that it was the right choice for me to flee to Australia. The Chinese government can hunt traitors under their own "definition" internationally and return them to China for trial.
If I am in Taiwan, I will every day I worry that I might suddenly "disappear" one day, and now I don't dare to transit through Hong Kong or the airline in Hong Kong; maybe I may be taken away at any time. If I was in Taiwan, who would I turn to for help, and how would I trust the Taiwanese government?
Now that there is a war between Ukraine and Russia, I am even more convinced that what follows is a crisis that Taiwan is about to face. The consequences will be disastrous for Taiwan, which is powerless to resist. I am really grateful for Australia's protection over the past two years, allowing me to live a very safe life here. I am willing to use the rest of my life to express my loyalty to Australia and do my best to help Australia. Regardless of what happened, I am genuinely grateful for what this land has brought me. Also, thanks again for spending time reading my letter.
-     A screenshot from a mobile phone of a photo of people at a gathering with words about the Taiwan organizational system monitoring the voting in the 2020 Presidential election and reporting in real time to Beijing.
-     A screenshot from a mobile phone of a news item dated 22 November 2019, with typed words across the top, stating that 30 billion Chinese invest in a Taiwan company, Datong, and if China succeeds all personal information and national defence secrets in Taiwan will be leaked.
-     A screenshot from a mobile phone of a news item dated 9 November 2019 regarding suspects who threw faeces at the ‘Umbrella restaurant’, admitting there was money from China behind it.
-     A screenshot from a mobile phone of a news item stating that the faeces attack on the Protective Umbrella restaurant for Hong Kong people seeking asylum in Taiwan was connected to the underworld, and arrest in Taiwan of political organisers in Taiwan.
-     A screenshot from a mobile phone of a news item regarding China’s involvement in extradition in Hong Kong.
-     A 2021 report by ‘Safeguard Defenders’ entitled ‘China’s hunt for Taiwanese overseas’ analysing the use of extradition of Taiwanese nationals around the world to China on accusations of telecommunications fraud.
2.On 5 April 2022 the applicant provided the following written information to the Tribunal:
-    A reference letter from the applicant’s employer.
-    A character reference from the applicant’s work supervisor.
Tribunal Hearing, 7 April 2022
The applicant appeared before the Tribunal on 7 April 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 following is a summary of the information provided by the applicant at the hearing:
a.The applicant’s Protection visa application was prepared by someone like an agent because the applicant’s English is poor. She has become aware that the contents were not complete. She only discovered this when she received a text message from the AAT.
b.She did not receive the notice of refusal of her Protection visa application. She lived in [Town 1] at the time in a hostel like home and she thinks the letter may have been lost or thrown in the rubbish. She was not aware that a review application had been lodged to the AAT until she received the AAT’s text message.
c.When she received the AAT’s text message she contacted an agent who worked with a lawyer. The agent sent her a screen shot of the contents of her statement of claims.
d.She contacted the agent through the ‘[instant messaging]’ application and does not know the identity of the agent. The agent’s contact ID in [the application] is ‘[Name]’. This is all the applicant knows. The agent is Taiwanese and a migration agent.
e.After she received the copy of her claims she then sorted things out for herself. She read the claims and realised they were incomplete. The Tribunal asked how the agent could obtain the applicant’s protection visa application details. The applicant responded she gave her consent and her Bridging visa details. She did not provide a written consent. The applicant received a letter from the department regarding her Bridging visa, to her home address in [Town 1]. She gave the agent the visa details from this letter.
f.Sometimes she did receive letters from the department at her home address, but maybe the cleaner threw away the letter notifying her of her Protection visa application or maybe the letter was lost. She did not check her mailbox everyday so maybe the letter was thrown out.
g.She can read basic English but also uses google translate to assist her with reading English.
h.She does not want to return to Taiwan because she often posts politically related comments on [social media], plus she has been active in the activities of the Hong Kong incident.
i.Since she was able to vote she has often posted her political opinions about Taiwan and China. She does not post political messages every day, but only when she sees some unfair news which she wishes to share. She was able to vote in 2007. She started posting messages in 2014 because she started in the Sunflower activities in Taiwan. She has been doing this since then.
j.When she was last in Taiwan she was stalked when she participated in anti-China activities. Someone followed her home and threatened her not to do that anymore. This was in 2020. In Taiwan she did anti-Chinese activities. She wrote and posted stickers on the walls. It was a mass activity. She was standing there not really opposing or supporting them. This was between 15 and 18 January 2020 around the area of the [a location] and the subway. She was there trying to show her support for Hong Kong and concern for Taiwan. She took photos with her mobile phone. She is not in the photos. She took photos of the little notes written by people supporting Hong Kong. She took photos of the walls not people. She was also involved in anti-China activity in Australia too.
k.Nothing else was happening at the time she was in Taiwan. The most scary thing was being stalked and threatened two times. The first time they followed her home but she was able to run away from them. The second time they stopped her and threatened her to stop what she was doing. She doesn’t know where they were from. They told her to stop what she was doing regarding Hong Kong so she became aware it was about the activities she had been attending. The activities were the parade and activities regarding objecting to Hong Kong going to China.
l.The applicant participated in the parade between the 15^th and 18^th, maybe on the 15^th. She held a card on which she had written ‘Support Hong Kong and don’t let Taiwan be the next one.’ Hundreds of people were present, maybe 200. There were at least 50 to 200 people. She stood there for about 2 hours. She was also on a parade in Melbourne in which she walked for more than an hour.
m.She thought no one would care about her activities because everyone was aware, but she realised it was dangerous when she was stalked. She alighted from the bus and walked home and felt someone behind her all of a sudden. She changed direction but they followed her. She succeeded in getting into her home. She could see them looking for her from her window. The second time she was too slow and they caught up with her and threatened her. She has no idea what their intentions were. She felt strange as well and scared.
n.She had no other activities in Taiwan.
o.The second time she was followed was when she went to stick something on the Lennon wall. She doesn’t know how they found her and knew she stuck something on the Lennon wall. When she found out they were following her she was on her way home passing a park. She thinks this was on [date]. Two people followed her. One of them was the same person who followed her on the first occasion. They told her to stop doing these things and to stop supporting Hong Kong. They said if she continued her arms and legs would be broken. She thinks only gangsters would do this.
p.Nothing else happened to her in Taiwan. Nothing has happened to her while she has been in Australia.
q.If she returns to Taiwan she will be scared because she has done those things and experienced those things. They passed the National Security Act so she is worried she will be arrested if she transits through Hong Kong. The Tribunal put to the applicant that there are direct flights between Australia and Taipei. The applicant responded that she was just giving an example. China has authorities in Taiwan so she is not sure she can resist this.
r.The Tribunal put to the applicant that country information indicates that Taiwan is a democracy in which there is robust and frequent political protests. She responded that she used to think she could go to protests freely but since the incidents she has become scared and doesn’t trust her country anymore. They could pay people to do things to her.
s.The Tribunal put to the applicant that her activities do not seem very high level or important enough for anyone to care about them. She responded that she thinks the same as well but maybe she is one who has been chosen and she has become scared. In the voting last time there was news about Chinese financial assistance and people trying to affect the election. So if the election can be interfered with she can be at risk as well.
t.Hong Kong people connected to the Umbrella movement opened a restaurant in Taiwan and gangsters spread faeces on it. She is worried she will be targeted because she often posts her opinions on [social media] and she is worried she will be taken away. Other Taiwanese people are not being taken away but one day they might be. She is worried the Chinese government will take her away in Taiwan. She has submitted reports about this. The Tribunal put to the applicant that the reports were about the extradition by China of Taiwanese people in third countries accused of telecommunication fraud. She responded that she is known and they have reasons to arrest people. She is not doing any fraud here but they could use another reason to arrest her. The Tribunal asked if she is worried she could be arrested in Australia. She responded no she trusts Australia. The Tribunal asked her if she is worried she will be arrested in Taiwan. She responded she is scared this may happen. She is not sure who will arrest her but there are gangsters and people from China in Taiwan. They might harm her or take her back to China.
u.She has no more to say, this is the main reason she does not want to return to Taiwan.
Country Information

The 2020 US DOS ‘Taiwan Crime and Safety Report’[1] states that:
Taiwan enjoys a vibrant democracy. Protests and demonstrations occur on a regular basis in major cities, particularly during elections. Demonstrations rarely turn violent, although they may become confrontational between opposing groups. Protest organizers must obtain permits from the police. Police often set aside areas for demonstrators, and police presence is clearly visible
… Economic Concerns Growing economic and business ties between China and Taiwan have increased concerns that employees might take corporate trade secrets to China for personal profit. The Trade Secrets law stipulates a maximum penalty of ten years and fines for such activities; however, this amendment does not provide investigators with tools (such as wiretapping) to prevent the theft of trade secrets. Once an employee absconds to China, the individual is beyond the reach of Taiwan’s prosecutorial system. Privacy Concerns Taiwan’s personal information protection act is very protective of the privacy of Taiwan nationals, and is designed to prevent the inappropriate dissemination of personal information by government, law enforcement, or private organizations.
…
The NPA performs police and law enforcement functions in Taiwan. NPA’s primary missions are to maintain public order, uphold the safety of Taiwan’s citizens and society, prevent hazards, and promote the welfare of Taiwan’s citizens. NPA conducts criminal investigations, enforces laws, and performs many of the same functions conducted by local, state, and federal law enforcement agencies in the U.S. The Ministry of Justice, Investigations Bureau (MJIB) is responsible for national security and investigating major crimes. MJIB’s national security mandate includes counter-terrorism, counter-infiltration, domestic security investigations, coordination of national internal security, and protection of national secrets. MJIB also investigates public corruption, economic crimes, drug crimes, money laundering, and cybercrimes.
[1] ‘Taiwan 2020 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), US Department of State, p. 2, 17 March 2020, 20200605123324
The 2021 Freedom House report on Taiwan[2] states:
[2] Freedom in the World 2021 Taiwan', Freedom House, 4 March 2021
Taiwan’s vibrant and competitive democratic system has allowed three peaceful transfers of power between rival parties since 2000, and protections for civil liberties are generally robust. Ongoing concerns include foreign migrant workers’ vulnerability to exploitation and the Chinese government’s efforts to influence policymaking, the media, and democratic infrastructure in Taiwan.
…
Major business owners with interests in China remain an influential force in Taiwanese politics, largely through their close relationship with the KMT and support for its China-friendly policies. The KMT, which governed Taiwan as an authoritarian, one-party state for decades until democratic reforms took hold in the 1980s and 90s, long enjoyed a considerable financial advantage over rivals like the DPP, which has traditionally favored greater independence from China. However, the KMT’s advantage has been whittled away in recent years by DPP government investigations into allegations that the KMT improperly acquired public assets during its rule, leading to the freezing of many of its accounts.
Chinese interference in Taiwan’s elections, largely through disinformation campaigns and influence over certain media outlets, remains a serious concern. In December 2019, the legislature passed a new Anti-Infiltration Act that will prohibit foreign powers from funding or directing lobbying efforts, election campaigns, or election-related disinformation in Taiwan. Violations can draw penalties of up to five years in prison. The KMT opposed the measure, warning that it could be used in a politicized manner and violate fundamental rights, though there were no reports of abusive enforcement in 2020.
…
Corruption is significantly less pervasive than in the past, but it remains a problem. Political and business interests are closely intertwined, leading to malfeasance in government procurement. The current DPP-led government has moved to reduce these practices, including through amendments to the Government Procurement Act that were adopted by lawmakers in 2019.
…
The 2005 Freedom of Government Information Law enables public access to information held by government agencies, including financial audit reports and documents about administrative guidance. Civil society groups are typically able to comment on and influence pending policies and legislation. In recent years, the open digital platform vTaiwan has gained acceptance among policymakers as a means for the general public to debate and contribute to legislative proposals.
…
The news media reflect a diversity of views and report aggressively on government policies, though many outlets display strong party affiliation in their coverage. Beijing continues to exert influence on Taiwanese media. Key media owners have significant business interests in China or rely on advertising by Chinese companies, leaving them vulnerable to pressure and prone to self-censorship on topics considered sensitive by Beijing. The National Communications Commission (NCC) has at times blocked the expansion of such media enterprises to ensure competition and pluralism, and it has fined television news channels for airing false reports. In November 2020, after repeated warnings and fines issued over several years, the NCC decided not to renew the broadcast license of the pro-Beijing television channel CTi News. The outlet—owned by business magnate Tsai Eng-meng’s Want Want Holdings conglomerate, which has strong ties to China—went off the air in December after courts upheld the decision. Reporters Without Borders issued a statement to defend the NCC’s move, saying it was not contrary to press freedom.
…
Personal expression and private discussion are largely free of improper restrictions, and the government is not known to illegally monitor online communication. Human rights experts have recommended improvements to laws meant to combat misinformation, some of which contain vague terms that have the potential to limit legitimate speech, though such laws are generally not enforced in an abusive manner.
…
The 1988 Assembly and Parade Act enables authorities to prosecute protesters who fail to obtain a permit or follow orders to disperse, and includes some restrictions on the location of protests, but freedom of assembly is largely respected in practice. During 2020, demonstrations were held on topics including the rights of migrant workers and discrimination against Indigenous people. Taiwan was one of the few countries in the world to hold an LGBT+ pride march, with many others canceled due to the pandemic.
Relations with China are reportedly politically controversial and the PRC allegedly interfered with the 2020 Presidential election. The current government of Taiwan reportedly favours independence while the former government favours closer ties with mainland China.[3] 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.[4]
[3] 'In a blow to China, Taiwan’s president coasts to a second term', The Economist, 11 January 2020; ‘Friend or Foe? Beijing Sizes up the KMT’s New Chair’, The Diplomat, 17 March 2020.
[4] 'What does Taiwan's public think about election interference from China?', The Diplomat, 10 January 2020; 'Democracy Facing Global Challenges V-Dem Annual Democracy Report 2019', University of Gothenburg, May 2019.
There are numerous articles reporting on the support by Taiwanese youth for Hong Kong pro-democracy activism. In September 2019 the following article referred to the creation of a ‘Lennon Wall’ in Taipei, in solidarity with Hong Kong activists:
Overnight, a busy underground passageway in Taipei transformed into a colorful “Lennon Wall,” a bold display of support for Hong Kong’s ongoing anti-extradition protests. Thousands of handwritten messages on sticky notes and posters line the tunnel from ceiling to floor. One phrase appears everywhere—“加油!” or “don’t give up!” Passersby are welcome to leave their own words of encouragement, and the wall grows every day.
…
Many citizens of Taiwan, an autonomous island with a historical identity crisis opposite of China, fear that Hong Kong’s struggle with China may place their country in a path of collateral damage. Challenging the “one country, two systems” policy is but a step away from challenging Taiwan’s disputed political status—whether or not it is a part of China. As a result, the bond between Taiwan and Hong Kong has strengthened as both attempt to defend their autonomy from China’s political advancements, a movement that especially resonates with the youth of the two democracies.
Taiwan and Hong Kong’s existing economic ties, centered on trade and tourism, are now expanding to become one of identity. The Taiwanese Hong Kong solidarity movement is largely led by the youth, in particular the Hong Kong Outlanders, an organization of Hongkongese students based in Taiwan. In addition to starting the Lennon Wall in early August, they have organized multiple solidarity activities in Taipei, including rallies and collections of motorcycle helmet donations for protesters in Hong Kong.
Hongkongese student Michael Lui ’20 frequently stations himself at the Lennon Wall, striking up conversations with anyone who walks by. He attends the National Taiwan Normal University in Taipei, and has seen the protests in his homeland erupt from afar. He is not affiliated with any organization nor is he compensated for his time, but he feels an intense responsibility to spread awareness about Hong Kong’s cause in Taiwan. Though Lui believes he has a stronger emotional connection to Hong Kong than his Taiwanese classmates do, he is grateful for their support.
“The Taiwanese and Hongkongers are standing a lot closer to each other,” Lui said. “In the Taiwanese mind, they know that [what’s happening in] Hong Kong is what might happen to Taiwan in the future… But no matter if it’s with their heart or their mind, what they did is the important thing. They did raise attention for us, and that’s what matters to us.”
Shaun Radgowski ’21 was studying Chinese at National Taiwan University when protests surged in the summer, and attended a solidarity rally in Taipei on June 16. He was one of several thousand attendees, mostly university students wearing black and carrying anti-extradition posters, braving Taiwan’s sweltering summer heat to support visiting activists from Hong Kong. From their impassioned speeches, Radgowski could sense a “feeling of mutual understanding between the youth of Hong Kong and the youth of Taiwan.”
…
Taiwan is rising to meet Hong Kong not only in solidarity, but also to protect its own autonomy as China grows more assertive in cross-strait relations. Officially known as the Republic of China, Taiwan’s tricky political status has long divided citizens; generally, Taiwan claims it is separate from China, while China firmly maintains that it is part of China. The debate, which continues to escape resolution, has flared up again with renewed urgency in the face of Hong Kong’s protests—a warning to Taiwan.
…
Taiwan’s youth are becoming restless. As their country continues to develop on a path that strays from China, a distinct Taiwanese identity is emerging. … “In recent decades, with [Taiwan’s] democracy growing further and further away from China—for example, being the first country in Asia to pass same sex marriage law—and our embracing [of] all ethnicities and cultures in Taiwan, not just Han Chinese but also aboriginal Taiwanese, we’ve developed our own Taiwanese identity,” Tang said.[5]
[5] The Yale Politic -Taiwanese Youth Rise with Hong Kong (thepolitic.org), 3 September 2019.
An October 2019 article states:
Taiwan’s weekend solidarity protests supporting Hong Kong’s ongoing pro-democracy movement, which brought tens of thousands to the streets in five Taiwanese cities, also saw Hong Kong activist Denise Ho attacked with red paint, allegedly by members of the fringe Chinese Unification Promotion Party (CUPP).
Both the ruling Democratic Progressive Party (DPP) and opposition Kuomintang (KMT) condemned the attack, which came days after several incidents involving Chinese nationals vandalizing “Lennon Walls” at Taiwanese universities and allegedly assaulting Hong Kong and Taiwan students.
… Police identified the culprit behind the paint attack on Denise Ho as CUPP chairman Hu Chih-weh. The CUPP, which is chaired by the notorious former gang leader Chang An-le, or the “White Wolf,” is a fringe party with links to funding from China which was searched by Taiwanese investigators in August. Ho has vowed to sue Hu and his alleged accomplice, Liang Tai-fu, for intimidation and public humiliation, according to local news reports.
… At Sunday’s Taipei protest, 2014 Sunflower Movement leader and current DPP deputy secretary-general Lin Fei-fan denounced the attack and stressed that demonstrators must “respect different opinions, but not use violence.”
The opposition KMT said in a statement that the “violent acts” committed on Sunday “run against the spirit of democracy and are the common enemy of democracy.”
President Tsai Ing-wen and the ruling DPP have been vocal in their support of Hong Kong protests and have steadfastly condemned the use of violence by Hong Kong police forces. The KMT has stated its opposition to “one country, two systems” but has been more measured in discussing the Hong Kong protests. Its presidential candidate, Kaohsiung mayor Han Kuo-yu, has accused Tsai of using the protests for political purposes.
Hong Kong’s protests, along with the overall maintenance of Taiwan’s democracy, retain broad support among Taiwanese voters and pro-Beijing outfits such as the CUPP operate on the fringes of Taiwan’s political environment.
But the DPP and KMT regularly spar over cross-strait matters, with the KMT advocating warmer relations with Beijing and staunchly opposing Taiwan independence.
The Hong Kong protests have shone a spotlight on some Chinese nationals in Taiwan, including students in Taiwanese universities, who have allegedly been involved in defacing Lennon Walls and attacking supporters of Hong Kong’s pro-democracy movement.
Last week, a Chinese family was investigated for vandalization of a wall at Kaohsiung’s National Sun Yat-sen University. Police said the family had been seen tearing messages in support of Hong Kong’s protests from the wall.
In recent weeks, there have been several reports of Chinese university students in Kaohsiung and Taipei vandalizing Lennon Walls. In one case, a Chinese student at Kaohsiung’s I-Shou University allegedly tried to strangle a Hong Kong student who had posted messages of support on the school’s Lennon Wall.
Tsai Ing-wen condemned the incidents in a Facebook post, saying Taiwan “would never allow such actions or tolerate them.”[6]
[6] Taiwan Condemns Attack on Hong Kong Activist Denise Ho and Destroyed Lennon Walls – The Diplomat, 2 October 2019. See also Taiwan expels Chinese tourist for damaging 'Lennon Wall' linked to Hong Kong protests | The Straits Times, 9 October 2019
The 2021 USDOS Human Rights Country report on Taiwan includes the following:
Taiwan is a democracy led by a president and parliament selected in multiparty elections. In 2020 voters re-elected President Tsai Ing-wen of the Democratic Progressive Party to a second four-year term in an election considered free and fair.
… The constitution provides for freedom of expression, including for members of the press, and other media, and Taiwan authorities generally respected this right. An independent press, an effective judiciary, and a functioning democratic political system combined to promote freedom of expression, including for members of the media.
… Officials in the People’s Republic of China (PRC) reportedly continued to influence Taiwan media outlets through pressure on the business interests of their parent companies in the PRC.
… Authorities did not restrict or disrupt access to the internet or censor online content, and there were no credible reports they monitored private online communications without appropriate legal authority.
… The constitution provides for the freedoms of peaceful assembly and association, and Taiwan authorities generally respected these rights.
A Singapore news outlet reported in January 2021 about police patrols ensuring the security of Hong Kong activist aligned businesses in Taipei and the arrest and jailing of people who threw paint on a Hong Kong activist businessman.[7]
[7] See Hong Kongers Moving to Taiwan: Temporary Haven or Permanent Home? Society News - Thinkchina, 22 January 2021.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant submitted her Taiwanese passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied she is a national of Taiwan. The Tribunal assesses the applicant’s claims against Taiwan as her country of nationality and receiving country.
Credibility
The applicant’s claims in her initial Protection visa application were very vague, confused and lacking in detail. It was difficult to understand what she claimed had happened to her in Taiwan and what she feared. She later stated to the Tribunal that these claims were written by a third person and she was unaware of the gaps in the information, until recently provided with a copy of her statement. The applicant’s evidence regarding the involvement of a third party or migration agent without her full authorisation was unclear and lacking in some plausibility. However given the lack of coherence in the initial written claims the Tribunal accepts that they lack credence and should not be relied upon.
Political Activity in Taiwan
The applicant claims to have been politically active in Taiwan. She claims her political activity started when she became eligible to vote in 2007. She participated in the Sunflower Movement in 2014 and started posting political messages to [social media] about China and Taiwan from about 2014.
The Sunflower movement started in 2014 in Taiwan when a group of mostly students spontaneously occupied the legislative building to protest Taiwan’s intended signing of a pact with China. The movement eventually successfully stopped the signing of the pact. Soon after this the opposition party which was pro Taiwan’s independence was elected to government in Taiwan.
The applicant’s evidence about her earlier political activity in Taiwan was brief but reasonably coherent. She was a little confused about the nature of her activity and when it started. However given the Sunflower movement was popular among the youth of Taiwan and anti-unification sentiments were broadly held by Taiwanese youth the Tribunal considers it possible the applicant had some participation with the Sunflower movement protests and posted pollical messages regarding Taiwan and China to her [social media] account. The Tribunal therefore gives her the benefit of the doubt and accepts that she has been involved in these earlier activities in Taiwan.
The applicant also claimed that when she returned to Taiwan in January 2020 she also either participated in, or observed and supported, a street demonstration in support of Hong Kong pro-democracy activists between 15 and 18 January; put messages on a ‘Lennon Wall’; and took photographs of the Lennon Wall.
The Tribunal could not locate any country information regarding pro-Hong Kong activists demonstrations in Taipei between January 15 and 18 in 2020. It did locate photographs of a demonstration by a socialist aligned group in Taipei on 19 January 2020 calling for the grant of political asylum to people from Hong Kong. 11 January 2020 was also the date of the Taiwanese Presidential election so it is likely there would be increased public political activity at the time. The Tribunal therefore accepts that there may have been public demonstrations at the time as described by the applicant which were not reported by the English language media.

It was difficult to obtain a clear response from the applicant about the demonstration and her involvement in it. She variously stated that she merely observed and supported it from outside the demonstration, but later that she was a participant carrying a placard in the demonstration. Given the vagueness of the applicant’s evidence the Tribunal does not accept she became directly involved in the demonstration. The Tribunal does however accept that she observed and supported it. The Tribunal also accepts that the applicant added a written note to a Lennon Wall and took photographs of the wall.
The applicant stated at hearing that she had no other political activity in Taiwan and the Tribunal accepts this.
The applicant appeared sincere in her expressions of concern for Hong Kong activists and Taiwan’s future. Her concerns are reportedly shared by the majority of Taiwanese youth. The Tribunal accepts that the applicant has a political opinion which opposes mainland China’s influence and assertions over both Hong Kong and Taiwan.
Political activity in Australia
The applicant claimed to the Tribunal that she participated in a demonstration in Melbourne in support of Hong Kong democracy activists, while in Australia. The Tribunal has located references to protests or vigils in support of Hong Kong activists being held in Melbourne in 2020.[8] The applicant described the protest as a lengthy march in which she remained for just part of the time. Given the widespread and robust global reactions to events in Hong Kong and the applicant’s accepted opinions, the Tribunal considers it plausible that she would participate in a protest in support of Hong Kong activists while in Australia. Although her description was brief it seemed to be given from genuine recall. The Tribunal therefore accepts that the applicant participated in a protest in Melbourne in support of Hong Kong activists.
[8] See e.g. Tiananmen Square massacre: Hong Kong readies for vigil as world remembers June 4 1989 (smh.com.au); Hong Kong's activists and artists reflect on the past year of protest - ABC News
The Tribunal also accepts that, while in Australia, the applicant continued to post political messages to her [social media] account critical of China’s actions in relation to Hong Kong and Taiwan.
‘Stalking’ and threats in Taipei
The applicant also claims that while she was in Taiwan in January 2020 she was followed by gangsters on two occasions, and threatened on the second occasion.
The Tribunal found the applicant’s evidence regarding when and where she was followed vague and confused. Despite her lengthy written statement to the Tribunal she included very little detail or substance to this claim in the written statement. Her oral evidence regarding times, settings and descriptions for the origin of the events was also lacking in clarity.
More significantly, the applicant was unable to satisfactorily explain why pro-China gangsters would bother to follow and threaten her on not just one but two occasions in Taipei. The applicant’s activities were low-level and she was just one of many youths in Taiwan supporting the Hong Kong protests and writing on Lennon Walls. There is no plausible reason why she would be singled out to follow and threaten. Nor is there any apparent reason why gangsters would waste time following her to her home and not simply confront her more immediately if they wanted to warn people against pro Hong Kong activity. That they would spend further time monitoring her activities on a subsequent day is even more absurd.
In view of the Tribunal’s serious doubts and concerns about this claim the Tribunal does not accept that pro-China gangsters followed and or threatened the applicant while she was in Taiwan in January 2020.
Fear of Harm in Taiwan
The Tribunal has accepted that the applicant has engaged in public political activity against China’s actions over Hong Kong and Taiwan. This activity consists of posting messages to [social media] and participation in a protest in Melbourne, support for a protest in Taipei, writing messages on a Lennon Wall in Taipei, and taking photographs.
As the country information highlights, the applicant’s opinions regarding China, Taiwan and Hong Kong are widely shared amongst Taiwanese youth. The current Taiwanese government has also been largely supportive and protective of its citizens in publicly expressing these views. As the country information shows the state has been proactive in arresting and prosecuting the few who have acted threateningly against Hong Kong activists and their Taiwanese supporters.
In her updated claims presented to the Tribunal the applicant does not claim to fear the state authorities in Taiwan. She claims that she fears pro-China operatives in Taiwan will assault her, kidnap her, and force her to mainland China. She also claims that if she is in Hong Kong she will be arrested and taken to China.
There is no indication that there is any real chance of pro-China operatives acting against the applicant in Taiwan or in Hong Kong. The applicant referred to country information of Taiwanese in third countries being formally extradited to China under allegations of telecommunication fraud. There is no evidence that that has been involved in telecommunication fraud or that there are any suspicions against her. There is also no indication that there is anything significant about the applicant that would cause the Chinese authorities to initiate extradition procedures against her. Her political activity and opinion do not differentiate her from the majority of Taiwanese youth and there is no indication that the Chinese authorities are taking extradition action against other similarly active Taiwanese youth.
There is also an absence of persuasive evidence that Chinese authorities would take any action against the applicant in Hong Kong. In any event there is no need for the applicant to go to Hong Kong so there is no risk or chance of her coming to the adverse attention of Chinese or Hong Kong authorities in Hong Kong.
The applicant fears that once back in Taiwan she will be kidnapped and taken to China against her will. However there is nothing about her political profile that would suggest such actions would be taken against her. Her political activity can be described as low-level and in line with broad Taiwanese sentiment. She is not a political leader or spokesperson. She is not involved in activity where her removal and prosecution in China could be considered worth pursuing for the Chinese authorities. There is no available evidence that Taiwanese youth in Taiwan are being taken to China for expressing pro Hong Kong views and participating in protests. In short there is no plausible reason why a person of the applicant’s profile would be of sufficient adverse interest to the Chinese state for them to take direct action against her.
On the evidence before it and for the reasons given above the Tribunal is not satisfied there is a real chance of the applicant being kidnapped in Taiwan and taken to mainland China.
The Tribunal has not accepted that the applicant was stalked, followed or threatened by pro-China gangsters in Taiwan.
The Tribunal has not located reports of pro-China gangsters threatening or assaulting pro Hong Kong Taiwanese. There are reports regarding paint and faeces throwing attacks on high profile Hong Kong activists and their sites in Taiwan, by people linked to pro-China groups. But these acts were not directed against Taiwanese people. The October 2019 report referred to above also mentions several reports of Chinese students in Taiwan vandalising Lennon Walls and in one instance in the city of Kaohsiung, allegedly trying to strangle a Hong Kong student for posting a message to a Lennon Wall. Again, this is not evidence that there is any real threat to Taiwanese who support Hong Kong activists. Further, according to the reports above, the Taiwanese authorities arrest and prosecute those involved in vandalism of the Walls and assaults of Hong Kong people.
On the evidence before it and for the reasons given the Tribunal is not satisfied there is a real chance that pro-China gangsters or groups will target the applicant for harm in Taiwan.
The applicant has not raised any other claims to fear serious or significant harm in Taiwan and none arise on the information before it.
The Tribunal is not satisfied there is any real chance or risk of serious or significant harm to the applicant in Taiwan.
The Tribunal is therefore not satisfied the applicant has a well-founded fear of persecution in Taiwan. The Tribunal is also not satisfied there is a real risk the applicant will suffer significant harm on return to Taiwan.
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) or 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.
Melissa McAdam
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 2019

2 May 2022

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