2013343 (Refugee) - [2024] AATA 3556

2013343 (Refugee) [2024] AATA 3556 (19 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2013343
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Amy Faram
DATE:19 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the Applicant a protection visa.

Statement made on 19 July 2024 at 5:41pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – village land acquired for facility – applicant organised group petition to county government – detained and released after payment by parents, monitored and threatened – consent to decision without hearing – insufficiently detailed claims and evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 866.221
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
SZBEL v MIMIA (2006) 228 CLR 152
SZTAL v MIBP [2017] HCA 34
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 August 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 2 October 2019. The delegate did not conduct an interview with the Applicant and refused to grant the visa on the basis that there was neither a real chance of serious harm nor a real risk of significant harm to the Applicant, under the refugee or complementary protection provisions respectively.
On 1 July 2024, the Tribunal wrote to the Applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Applicant was invited to appear before the Tribunal to give oral evidence and present arguments relating to the issues arising in his case.
On 19 July 2024, the Applicant emailed the response to hearing invitation form to the Tribunal. The Applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking further steps to enable him to appear, that is ‘on the papers’.
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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or they are a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criteria
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.
Complementary protection criteria
If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
A real risk (as with a real chance, per the refugee criteria) is one that is not remote or insubstantial or a far-fetched possibility.[1]
[1] Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
‘Significant harm’ is exhaustively defined in s 36(2A). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. There is an intentional element to the meaning of cruel, inhuman and degrading treatment or punishment (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34).
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Sections 5(1) and 36(2A) and (2B) 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 (the Department), to the extent that they are relevant to the decision under consideration. The Tribunal’s mandatory considerations would also ordinarily also include country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, however there is no such report on Taiwan.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, on account of advocacy against a [facility] near his home area, the Applicant is a person to whom Australia has protection obligations under s 36 of the Act and cl 866.221 of Schedule 2 to the Regulations.
While the Applicant declined to give oral evidence to the Tribunal, the Tribunal, with reference to his form and copy passport is satisfied that he is a citizen of Taiwan. For the purposes of this protection eligibility assessment, Taiwan is the ‘receiving country’ against which his claims are assessed.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Applicant was born on [Date] in [Township], Kaohsiung, Taiwan. He arrived in Australia [in] December 2017 and, as noted above, on 2 October 2019 lodged a protection visa application.
In his protection application form, the Applicant stated that he had completed high school in [Year] and had studied [subject] through a vocational course at a technical college between [Year] and [Year]. Following this, he worked as [an occupation] for 8 years at a [company] in Kaohsiung City, Taiwan. The application form also set out that the following had occurred:
-[In] November 2016, the Kaohsiung County Planning Authority (KCPA) put a ‘pre-approval publicity’ sign board on the roadside of their village. It said the KCPA would acquire the village land and build a [facility].
-The news cause panic among more than a thousand villagers. [Facility function] can produce poison and pollute the air. Many companies in Taiwan make profits by reducing the costs of environmental protection. The pollution caused will be severe.
-The Applicant was one of the villagers to petition the Kaohsiung County government. He also organised a group signature and opposed the factory. He went to the government three times, and once led more than 150 people.
-They complained that the plan did not consult villagers and must be stopped. They asked the government to relocate the plant and to build it in a less populated area.
-The government did not respond to the request and [in] April 2017, the police of [the] Township took him to the police station. They asked for the names of the opponents, and he refused to reply. They slammed him on a pillar. The next day, his family paid NTD10,000 and the police let the Applicant go home.
-The police began to monitor his activities. He was threated and applied for a visa to come to Australia.
-It would have been useless to move away: there is no safe place for him in Taiwan.
-Since his arrival in Australia, he has been advising opponents. Because of their efforts, the scheduled [facility] was temporarily suspended. He thought it was safe, and so returned to Taiwan to visit his family in July 2018. On the third day, the police came to his house. He was not at home. The police said the opponents affected the government’s plan and must be punished. He hid and returned to Australia immediately.
-The police are looking for him. The government wants to arrest him because he made trouble for them. The matter has not ended, and he cannot return to Taiwan.
The claimed events of concern to the Applicant occurred some 6-8 years ago. The Applicant has not provided details about the support he says he provided from Australia to other opponents in Taiwan, nor has he provided any corroborative evidence of the petitions he claims to have been involved in collating, or of the police’s previous arrest of him and the money his family paid to secure his release, or about the planned [facility] itself. The Applicant has also not provided any details about whether he remains of interest to the authorities in Taiwan.
The Tribunal could not locate any information about protests in Kaohsiung County with respect to a [facility] in and around 2016/2017, though other protests about other facilities at this and other times were located.[2] Reference to those same articles indicates that environmental activism in Taiwan, including in Kaohsiung, is common and indeed an accepted part of the public sphere: ‘[i]n Taiwan, environmental movements were an integral part of the larger process of democratization. In their effort to create a cleaner and greener environment, green activists in Kaohsiung, the second largest city in Taiwan, set up examples of citizen participation and assisted in establishing within the existing administrative framework formal mechanism for public involvement.’[3]
[2] I-chia, L.., ‘Protesters rally against nuclear power’, Taipei Times, 13 March 2016; National Geographic, ‘Nuclear Protests Planned in Taiwan on Japan Earthquake Anniversary’, 9 March 2012; Yu-Tzu, Chiu, ‘Anti-incinerator protests across Taiwan’, Tapai Times, 30 October 2003; Huang, S. ‘Tafa Industrial Park protest march turns violent’, Taipei Times, 19 January 2009; Lee, A., ‘Southern Green Revolution: Urban Environmental Activism in Kaohsiung, Taiwan’, (2007) John Jay College of Criminal Justice, City University of New York (CUNY).
[3] Lee, A., ‘Southern Green Revolution: Urban Environmental Activism in Kaohsiung, Taiwan’, (2007) John Jay College of Criminal Justice, City University of New York (CUNY).
The Act places certain obligations on applicants to provide sufficient evidence to establish their claims (section 5AAA) and it is established that, while an inquisitorial process, it is for an applicant to make their case.[4] The fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that the statutory elements are made out and a decision-maker is not required to make the applicant's case for them.
[4] SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 at [57].
The Applicant has provided insufficient details about his claims. The Tribunal appreciates that it is sometimes not possible or safe for an applicant for a protection visa to provide additional evidence to corroborate their claims, however, there is no information before the Tribunal to indicate that this Applicant faces any such difficulties.
The evidence presented by the Applicant is not sufficiently detailed to enable the Tribunal to be satisfied that he has in the past experienced serious harm or been targeted for harm for the reasons he has provided. Further, the information provided is not sufficiently externally coherent (as compared to country information) or detailed for the Tribunal to be satisfied that the Applicant faces a real chance of serious harm for the reasons claimed, or for any others, in the future. It follows that he does not meet the refugee criteria set out in s 36(2)(a).
Section 36(2)(aa) of the complementary protection provisions refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
As set out above, the Tribunal is not satisfied there is a real chance that the Applicant will experience serious harm in Taiwan because of environmental activism or for any other reason. Similarly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed Australia to Taiwan, there is a real risk[5] that he will suffer significant harm for this reason, or any other reason, in Taiwan.
[5] A real risk, as with a real chance, being one that is not remote or insubstantial or a far-fetched possibility, Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
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.
Amy Faram
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.
…