2014479 (Refugee)
[2024] AATA 4217
•2 August 2024
2014479 (Refugee) [2024] AATA 4217 (2 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2014479
COUNTRY OF REFERENCE: Republic of China (Taiwan)
MEMBER:Jason Pennell
DATE:2 August 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 2 August 2024 at 4.01pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – particular social group – lesbian – fear of physical assault – threats by a village chief – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramanium v MIMA (1998) VG310 of 1997
Zhang v RRT & Anor [1997] FCA 423
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
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant, who claims to be a citizen of Taiwan, applied for the visa on 16 April 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant, pursuant to s 36(2)(b) and s 36(2)(c).
3.The applicant did not appear before the Tribunal to give evidence and present arguments. On 3 June 2024 the Tribunal sent an email[1] to the applicant advising that a Tribunal member had been allocated to her application for review and requesting that she complete a pre-hearing information form. The Tribunal did not receive any correspondence from the applicant in response to the email. On 8 July 2024 the Tribunal sent the applicant an invitation to attend a hearing before the Tribunal on 29 July 2024 at 10.30am[2] for the purposes of giving evidence and making submissions in support of her claim for protection.
[1] ECAR Post Constitution Outreach email dated 3 June 2024; AAT file No 2014479 Doc ID: 12715869
[2] Hearing Invitation dated 8 July 2024; AAT file No 2014479 Doc ID: 12991600
4.On 26 July 2024 the applicant provided the Tribunal with her response to the hearing invitation[3] in which she elected not to participate in the hearing and consented to the Tribunal making a decision in relation to the application for review on the papers without her taking any further steps to appear before the Tribunal. As a result, in accordance with the applicant’s instruction, the Tribunal has decided not to conduct a hearing in this matter and to proceeded to make a decision on the papers.
[3] Hearing Response dated 26 July 2024; AAT file No 2014479 Doc ID:12991639
CRITERIA FOR A PROTECTION VISA
5.The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.
6.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.
7.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.[4] 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.[5]
[4] Section 5H(1)(a) of the Act
[5] Section 5H(1)(b) of the Act
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.
9.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[6] (‘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.
[6] Section 36(2)(aa) of the Act
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
APPLICANT’S CLAIMS AND EVIDENCE
Applicant’s identity
The applicant claims she was born on [date] in [District 1], Tainan, Taiwan.[7] The applicant provided the Department with a certified copy of her valid passport that confirmed her date and place of birth. There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that the applicant is a citizen of Taiwan and as such her protection claims will be assessed against Taiwan as the country of reference and ‘receiving country’ respectively.
[7] Protection visa application dated 16 April 2019 Dept file [Number] Doc ID: 7701603
Migration history
The applicant first arrived in Australia [in] October 2017 on a working holiday visa and lodged a Protection (Class XA) (Subclass 866) visa application on 16 April 2019.[8] The applicant is currently onshore lawfully on a Bridging visa A, which was granted on 2 May 2019.
[8] Ibid
Applicant’s claims for protection
The applicant first submitted claims for protection in her application for a protection visa dated 16 April 2019.[9] The applicant’s claims are as follows:
[9] Protection visa application form, Dept File [Number] Doc ID: 8598316
Provide reasons why this applicant left that country or those countries:
I am gay, look at my photos and find me like a boy, but biologically I am a girl. From the beginning of elementary school, I found out that I am different, and girls. I have been very troubled and very painful, this is why. Later, after I went to middle school, I understood a little. I started to become silent, I like girls very much, girls are by my side, my heart beats faster. My dress is like a boy. My parents are very worried, the students laugh at me, and the neighbors are very upset. Taiwan is a traditional country. Chinese traditional culture is very profound. People's minds are not open. Especially my hometown. My parents' thoughts are not open. They don't allow me to meet friends and don't allow me to contact my girlfriend. The village chief also threatened me, let me get out of the village, don't come back, or kill me. I escaped.
Did this applicant experience harm in that country or those countries?
No
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
No. Taiwan is a traditional country. Taiwan does not accept homosexuality. Thought is not open.
Explain what the applicant thinks will happen to them if they return to that country or those countries:
I will be discriminated against, threatened, and abused.
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
Yes. I will be discriminated against, threatened, and abused.
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
No. Taiwanese culture is conservative. Homosexuality is discriminated against in Taiwan. Very serious discrimination
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
No.Taiwanese culture is conservative. Homosexuality is discriminated against in Taiwan. Very serious discrimination.
14.The delegate summarised the applicant’s claims as follows:[10]
[10] Department decision record, Tribunal file 1717173, Doc ID no: 7381921
·She is gay, “look at my photos and find me like a boy, but biologically I am a girl”.
·In Elementary school she discovered she was different, was troubled by this and found it painful. Later in Middle School, she understood it a little more and started to become silent. “I like girls very much, girls by my side, my heart beats faster.”
·Her parents are very worried, other students laughed at her and the neighbours are very upset.
·Taiwan is a traditional country, and Chinese traditional culture is very profound and people’s minds are not open, especially in the applicant’s hometown
·Her parent’s thoughts are not open, they do not allow her to meet her friends, or contact her girlfriend.
·The village chief threatened her and “let me get out of the village, don’t come back, or kill me. I escaped”
·She did not try to relocate as Taiwan is a traditional country and does not accept homosexuality.
·If she returns to Taiwan she will be discriminated against, threatened and abused.
·If she returns to Malaysia, she claims the authorities will not help as Taiwanese culture is conservative and homosexuality is seriously discriminated against in Taiwan.
Applicant’s supporting documentation
The applicant did not provide any documentation in support of her protection claims.
Applicant’s evidence
The applicant did not appear before the Tribunal for the purposes of giving evidence or making submissions in support of her application for a protection visa. As such, the only evidence before the Tribunal in support of the applicant’s claim was contained in her protection visa application.[11]
[11] Application for Protection Visa dated 16 April 2016, Dept file [Number], Doc ID 4859234
The applicant claims that she was born on [date] in [District 1], Tainan, Taiwan. She claims that she is ethnic Chinese and speaks, reads and writes Chinese. The applicant claims to have no religion.
The applicant claims that she attended school in Tainan, Taiwan and completed High School in [specified year].[12] There was no evidence that the applicant had attended any tertiary education. The applicant claims that she was not employed but had supported herself financially by being engaged in small business. The applicant did not detail the nature or type of small business in which she had been engaged. Despite claiming that she was not employed, her evidence in her visa application was that she had arrived in Australia [in] October 2017 on a working holiday.
[12] Ibid
The applicant claimed that she is gay. Her evidence was that she found out that she was different in elementary school and as a result had been troubled. Her evidence was that her parents were worried because she dressed like a boy. Students would laugh at her, and neighbours became upset. The applicant claims that Taiwan is a traditional country and Chinese traditional culture made it difficult for her to be accepted. The applicant claims her parents prevented her from meeting her friends and didn't allow her to contact her girlfriend. In addition, she claimed that the village chief threatened her to force her to leave the home village.
The applicant claims that if she is returned to Taiwan, she will suffer very serious discrimination, abuse and threatening behaviour. That is, she will be seriously or significantly harmed because homosexuality is not accepted in Taiwan.
COUNTRY INFORMATION
In accordance with Ministerial Direction No.84 of 24 June 2019 made under s 499 of the Act, the Tribunal must consider the country information assessments prepared by DFAT. However, there is no country information report about Taiwan prepared by DFAT for protection status determination purposes. The Tribunal has therefore considered various other country of origin information sources including the National Documentation Packages prepared by the Immigration and Refugee Board of Canada in relation to Taiwan. In addition, the Tribunal has considered the DFAT ‘Common Claims’ Republic of China (Taiwan) report dated 5 July 2022 (the DFAT Common Claims report) as detailed in Annexure ‘A’ to this decision.[13]
[13] Department of Foreign Affairs and Trade website ‘Australia-Taiwan Relationship’; OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[14] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[15]
[14] Section 5AAA of the Act
[15] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[16] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.
[16] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at 482
If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[17] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[17] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196]
In this case, the applicant did not appear before the Tribunal to present evidence and submissions in support of her claim. In addition, the applicant has not provided any documentation in support of her claim.
Applicant’s refugee claim
Relevant grounds
To be considered a refugee pursuant to s 36(2)(a) of the Act, it is necessary that if an applicant is returned to his or her country, he or she has a well-founded fear of persecution by reason of his or her race, religion, nationality, membership of a particular social group (PSG) or political opinion pursuant to s 5J(1)(a) of the Act. In this case, it was open to the applicant to submit that her claim falls within the scope of s 5J(1)(a) of the Act as a member of a PSG, that is, a member of the LGTBI community, who will suffer serious harm if she is returned to Taiwan.
When a person claims to fear being persecuted for reasons of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It states:
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.
As such, for a person to be treated as a member of a PSG (other than the person’s family) he or she must have a characteristic, other than a fear of persecution, that is shared, or is perceived as being shared, by each member of the group. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.[18]
[18] Section 5L of the Act; Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264–266 and Gummow J at 285
In this case, the Tribunal accepts that the applicant is a lesbian as claimed and therefore a member of the LGTBI community. The Tribunal finds and accepts that the applicant’s sexuality is a characteristic that can be described as innate or immutable and that it is fundamental to her identity or conscience and that she should not be forced to renounce it as required under the Act. As such the Tribunal finds that the applicant is a member of a PSG within the scope of s 5J(1)(a) of the Act.
Applicant’s well-founded fear
An applicant must have a well-founded fear of persecution. Section 5J of the Act states that for the purposes of an application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country. In the case of a PSG, the persecution said to be feared by the applicant must be for reasons of membership or perceived membership of the group.[19]
[19] Sections 5H(1) and 5J(1)(a) of the Act; see Applicant A v MIEA (1997) 190 CLR 225 at 240
In Chan v MIEA[20] the Court, in considering the Convention, held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[21]
[20] (1989) 169 CLR 379 at 396
[21] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[22] Section 5J(4) of the Act requires that the reason for the persecution must be the essential and significant reason and that it must involve systematic and discriminatory conduct.
[22] Chan Yee Kin v MIEA (1989) 169 CLR 379
In this case, the Tribunal has considered if there is a real chance the applicant will be seriously harmed if she is returned to Taiwan and, for the reasons expressed below, the Tribunal has found that the applicant does not have a well-founded fear of persecution as claimed, either on a subjective or objective basis.
Delay
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[23] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be considered when assessing the genuineness or depth of an applicant’s fear of persecution.[24]
[23] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370
[24] Subramanium v MIMA (1998) VG310 of 1997
In this case the applicant arrived in Australia [in] October 2017 on a working holiday visa and lodged a Protection (Class XA) (Subclass 866) visa application on 16 April 2019,[25] a period of approximately 18 months after her arrival in Australia. In the material before the Tribunal the applicant did not provide any reasonable explanation for the delay in making her application for protection. Had the applicant decided to appear before the Tribunal, it would have given the applicant the opportunity of explaining the delay in making her protection visa application. However, in circumstances where the applicant claims to have a well-founded fear of persecution upon her return to Taiwan due to her sexuality, it is reasonable to expect the applicant to have claimed protection upon her arrival in Australia.
[25] Ibid
Therefore, based on the applicant’s delay in making her application for protection, the Tribunal, on an objective basis, has reservations about the genuineness and depth of the applicant’s fear of persecution[26] as claimed. Given the delay of approximately 18 months from her arrival in Australia until the time of making her application for a protection visa, together with the fact that the applicant has not provided any evidence in support of her claims, the Tribunal has placed little weight on the applicant’s claims detailed in her protection visa application.
The applicant’s claim
[26] Subramanium v MIMA (1998) VG310 of 1997
The applicant claims that there is a real chance she will be seriously harmed if she is returned to Taiwan because of her sexuality as a gay person. The applicant claims that in her photos she looks like a boy. She claims that she discovered she was gay in elementary school, which caused her trouble and was very painful. She became silent and other students laughed at her and her parents became worried. She claimed that Taiwan and Chinese culture is very traditional and as a result her parents prevented her from meeting her friends and seeing her girlfriend. Further, she claims that she was threatened by the chief of the village, who told her to leave the village and not to return. The Tribunal notes that despite her claim that as a gay person she suffered discrimination, including being threatened by the village chief, the applicant specifically states in her protection visa application that she did not experience any harm in Taiwan.[27]
[27] Protection visa application form, Dept File [Number] Doc ID: 8598316
The applicant did not provide any evidence to the Tribunal in support of her claim. She chose not to appear at the review hearing for the purposes of giving evidence and making submissions in support of her claim. In addition, she did not present any independent evidence in support of her claim that she would be harmed upon her return to Taiwan because of her sexuality. Despite the applicant’s lack of evidence in relation to her sexuality, the Tribunal accepts that she is gay as claimed.
The country information reports that the rights of lesbian, gay, bisexual and transgender LGBT) people in Taiwan are considered to be the most comprehensive in Asia.[28] Following a Constitutional Court ruling in 2017, on 24 May 2019 same sex relations for both males and females were legalised. In addition, since May 2023 same sex couples have been able to jointly adopt children.[29]
[28] QUARTZ, ‘In a first for Asia, Taiwan legalized same-sex marriage—with caveats.’ Isabella Segar 17 May 2019; News.com.au, ‘Taiwan expands adoption rights for same-sex couples’ 16 May 2023
The country information reports[30] discrimination based on sexual orientation, gender identity and gender characteristics in education was banned in Taiwan in 2004. In addition, it is reported that violence against lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) individuals is rare in Taiwan. [31] It is also reported[32] that civil society organisations generally assessed the police response to violence against such individuals as being adequate. In addition, the law stipulates employers cannot discriminate against job seekers or workers based on gender or sexual orientation and prohibits schools from discriminating against students based on their gender, gender traits, gender identity or sexual orientation.[33] It is reported that the authorities generally enforced the law effectively.[34]
[30] Gender Equity Education Act (Act, 13–14) 23 June 2004
[31] U.S Department of State, 2022 Country Reports on Human Rights Practices: Taiwan; Ibid
[33] Ibid
[34] Ibid
Finally, the country information reports that members of the LGBT community working in the area of cinematic and literary works are active in promoting public awareness of LGBT people in Taiwan and promoting LGBT rights. It is reported[35] that the first Taiwan Pride march was held in Taipei in 2003 and has been held every year since. It’s reported that in 2015 it had become the second largest LGBT pride march in Asia (behind Tel Aviv, Israel) with over 80,000 participants. By 2019, the number of participants in the march had grown to over 170,000 people[36] with an estimated 176,000 people taking part in the Taiwan Pride march on 28 October 2023.[37] It is reported that pride marches are now also held in the cities of Koahsing and Tiachung.[38]
[35] The New York Times, ‘Taiwan’s Gay Pride Parade Draws Thousands, as Votes on Same-Sex Marriage Near’, 27 October 2018; Ibid
[37] Pink News, ‘Taiwan draws hundreds of Thousands in East Asia’s largest Pride march,’ 29 October 2023; TAIWAN, ‘GAY PRIDE PARADE SET FOR KAOHSIUNG’ 20 SEPTEMBER 2011; FOCUS TAIWAN, ‘TAICHUNG CITY TAIWAN CELEBRATES PRIDE WITH A RECORD-BREAKING CROWD OF 20,000’ 22 DECEMBER 2016
The applicant claims that Taiwanese and Chinese culture is very traditional. As a result, she experienced prejudice and discrimination from her parents and fellow students at school. The country information reports that despite many LGBT people facing difficulties in being accepted by their family due to the ‘traditional family values’ that still exist in Taiwan, many LGBT people have strong, supportive social networks.[39]
[39] Emerald Insight; ‘Understanding LGBT individuals' employment environment in Taiwan: a relational framework perspective’ 19 March 2021 by Jennet Achyldurdyyeva, Li-Fan Wu, Nurbibi Datova; >
In addition, the Tribunal notes that the country information reports that the overall crime rate in Taiwan is low.[40] The National Police Administration (NPA) of the Ministry of the Interior is well trained and professional.[41] The mission of the NPA is to carry out police and law enforcement in Taiwan, maintain public order, uphold the safety of its citizens and society and promote the welfare of citizens. Violent crime rates in Taiwan are amongst the lowest in the world.[42] Excessive use of force by the police is rare and lawyers are permitted to monitor interrogations to prevent torture. It’s reported[43] that people in Taiwan are increasingly satisfied with the country’s public safety and police services with 85.66 per cent of the population satisfied with police performance.
[40] Crime and Police in Taiwan; Ibid
[42] US State Department; 2022 Country Reports on Human Rights Practices: Taiwan The DFAT Common Claims report p.6
[43] Taiwan Today ‘Poll sees rising satisfaction with ROC public safety’ 20 May 2015, Freedom in the World 2022 Freedom House 9 June 2022 Taiwan,
The Tribunal notes that the applicant specifically stated in her protection visa application that she was not harmed in Taiwan. In addition, she did not provide the Tribunal with any detail or independent evidence of her having suffered harm that would be considered serious harm pursuant to s 5J of the Act. Therefore, while the Tribunal accepts that the applicant may have experienced a degree of discrimination and prejudice by her family and classmates as claimed, based on the available country information, the Tribunal finds that she would not be seriously harmed if she is returned to Taiwan. As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed if she is returned to Taiwan.
Finally, the applicant claims that the village chief demanded that she leave the village and not return. The applicant did not provide any details as to the identity of the village chief, when the threat was made or the circumstances in which he demanded that the applicant leave her village and not return. In addition, the applicant did not offer any supporting evidence of the threat being made by the village chief as claimed. In circumstances where the applicant’s claim was vague and lacking in detail and was not supported by any independent evidence or reasonable explanation by the applicant as to the circumstances in which the threat was made, the Tribunal does not accept the applicant’s claim that she was threatened by the village chief and finds that there is no real chance she will be seriously harmed by the village chief if she is returned to Taiwan.
Therefore, having considered the applicant’s claims both individually and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution if she returns to Taiwan and finds that the applicant does not satisfy s 36(2)(a).
Complementary protection
The Tribunal also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.
For the reasons detailed above, the Tribunal has not accepted the applicant’s evidence that because of her sexuality as a gay person, she would be seriously harmed if she is returned to Taiwan. Accordingly, the Tribunal has found that there is no real chance that she would be seriously harmed if returned to Taiwan. Therefore, for the reasons expressed above in considering the applicant’s claim as a refugee, the Tribunal finds that there is no real risk that she will be significantly harmed if she is returned to Taiwan.
In all the circumstances, the Tribunal finds that, pursuant to s 36(2)(aa) there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, there is a real risk that she will suffer significant harm of any kind.
At no stage did the applicant advance any other reason, such as her race, nationality or religion, in her written claims that she is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s 36(2)(a) and s 36(2)(aa) of the Act.
Having considered her claim and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk she will suffer significant harm, including that she will be arbitrarily deprived of her life, suffer the death penalty, be subjected to torture, be subjected to cruel or inhuman treatment or punishment, or be subjected to degrading treatment or punishment, as required by s 36(2)(aa).
Conclusions
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 the Act for the reasons mentioned in s 5J(2). Therefore, the applicant does not satisfy the criterion set out in 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) based on 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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jason Pennell
MemberATTACHMENT - 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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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.
…
0
11
0